M/S APEX TRADERS Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) BY way of this petition, U/S 432 of the Cr. P.C., the petitioner has sought the relief to set aside the order dated 19 -7 -2004, passed by Additional Sessions/F.T.C. -II, Haridwar in Crl. Revision No. 456 of 2003, and the order dated 11 -9 -2003 passed by Special Judicial Magistrate, Haridwar, in Criminal Case No. 506 of, 2003 (Old No. 259 of 2003) Gandhi Gramudyog Kendra Vs. Apex Trader, U/S 138 of the Negotiable Instrument Act. Brief facts of the case giving rise to this petition are that the respondent No. 2 filed complaint U/S 138 of the Negotiable Instrument Act against the petitioner with the allegations that the petitioner purchased shawls, blankets etc from the respondent amounting to Rs. 1,30,350/ - and paid Rs. 8,350/ - in cash. For the balance amount of Rs. 1,22,000/ - issued cheque No. 0014431 in favour of the respondent No. 2. When the cheque was presented before the concerned bank the same was dishonoured. The cheque was again presented on 20.3.2003 but the same was again dishonoured by the bank. The respondent No. 2 sent notice to the petitioner Firm on 10 -4 -2003 and the notice was served upon the petitioner firm but despite service the amount was not paid to the respondent No. 2 therefore the complaint was filed on 12.5.2003 before the A.C.J.M. Haridwar. The learned Magistrate recorded the statements of the complainant and its witnesses U/S 200 and 202 Cr. P.C. and finding prima facie case U/S 138 of the Negotiable Instrument Act, took cognizance against the petitioner vide order dated 11.9.2003. Feeling aggrieved by the aforesaid order the accused/petitioner also filed criminal revision before Additional District & Sessions Judge/F.T.C. -II Haridwar, who vide judgment and order dated 19.7.2004 dismissed the same.

(2.) NOW the accused/petitioner has approached this court by filing this petition to set aside the above orders passed by the courts below on the ground that the petitioner was not served with the notice by the respondent No. 2 as he was not residing at the address shown in the notice. The complaint so filed was premature and the same should have been rejected instead of taking cognizance of the learned Magistrate. The revisional court also committed manifest error in dismissing the revision of the petitioner and confirming the order of the Magistrate.

(3.) HEARD learned counsel for the parties and perused the material on record.