SANJAY SOMANI Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the revisionist and learned A.G.A for the State.

(2.) The facts, as elicited from the record, are that Allahabad Bank, a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, on 6.2.1995, instituted complaint, under section 138 of the Negotiable Instruments Act, 1881, against M/s Somani Investments and its authorized representative / signatory Sanjay Somani (the revisionist). In the complaint it was alleged that the revisionist issued cheque no.309886, dated 20.12.1994, drawn on ANZ Grindlays Bank, for Rupees four crores in favour of the complainant as part payment towards the adjustment of his liability. The said cheque was presented for collection of the cheque amount, on 31.12.1994. On 31.12.1994 itself, the Bankers (ANZ Grindlays Bank) returned the cheque unpaid with the remark "Refer to Drawer (insufficient funds)". Consequently, demand notice was sent under registered post on 13.1.1995, which was served on 14.1.1995. On failure to make payment within the statutory period of 15 days, complaint was filed on 6.2.1995, with documents i.e. photocopy of the concerned cheque, bank memo, notice, postal receipt, etc. From the certified copy of the order sheet, which has been brought on record through a supplementary affidavit dated 6.8.2012, it appears that the Court registered the complaint on 6.2.1995 itself and fixed 10.2.1995 for recording of statement under section 200 CrPC. The order sheet also discloses that on 21.2.1995 statement under section 200 CrPC was recorded. From Annexure 2 to the main affidavit, it appears that statement of C.L. Maurya, the branch Manager of the Complainant, was recorded, who supported the complaint case. After recording the statement, under section 200 CrPC, on 21.2.1995, the court fixed a date for arguments. Thereafter, it appears that the case got adjourned for various reasons and dates after dates were fixed in the matter. According to the counsel for the revisionist, the matter was delayed as the original of the cheque concerned was not produced. However, on 30.6.2012, an affidavit of Jitendra Nath Trivedi, the branch Manager, Allahabad Bank, was filed, which disclosed that the original of the cheque was handed over to the then Complainant's counsel Sri Vinod Lal Chandani, and since he is no more alive, the original cannot be produced. The court below finding that a prima facie case punishable under Section 138 of the Negotiable Instruments Act, 1881 was made out against the revisionist passed the impugned summoning order.

(3.) Challenging the summoning order, the learned counsel for the revisionist contended that the summoning order cannot be passed after 17 years of the presentation of the complaint. It has been contended that the complaint was filed on 6.2.1995 whereas the summoning order was passed on 18.7.2012, therefore, the proceedings should be deemed to be barred by limitation. It has further been submitted that in absence of the original of the dishonored cheque, the court below could not have acted upon the complaint allegations and proceeded to summon the revisionist. A feeble attempt was also made to challenge the validity of the summoning order on the ground that the affidavit submitted by Jitendra Nath Trivedi, who was not the complainant, without his examination in Court, could not have been relied upon.