GANESH BABU GUPTA Vs. STATE OF U.P.

JUDGEMENT

(1.) The present application under Sec. 482 Cr.P.C. has been filed to quash the proceedings of Complaint Case No. 3376 of 2007 (O.D. Gupta Vs Ganesh Babu Gupta), under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act'), pending in the court of Xth Metropolitan Magistrate, Kanpur Nagar. It is also prayed to quash the order issuing Non-Bailable warrants dtd. 10/12/2020 and order of proclamation under Sec. 82 Cr.P.C. dtd. 21/1/2021. It is further prayed to direct the Magistrate to pass orders upon the application preferred by the applicant under Sec. 203 Cr.P.C. before proceeding further.

(2.) Learned counsel for the applicant submitted that the entire alegations are false. The cheque in question was not issued against any existing debt or liability. Referring to the complaint, it was also argued that date of service of notice is not disclosed in the complaint. Until and unless date of service of notice is disclosed, cause of action to initiate the prosecution under sec. 138 of the Act does not arise.

(3.) On the other hand, learned AGA appearing for the State submitted that it is not mandatory to disclose the date of service of notice in the complaint. It is a matter of evidence, which can be seen during the trial. At this stage, only a prima facie case is to be seen. There is no illegality or infirmity in the impugned order. It is further contended that once it is mentioned in the complaint that notice was dispatched on the address of the accused, which has not been stated to be incorrect, there would be a presumption in law with regard to service of notice.