VIJAY KUMAR UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) The present application under Section 482 of Cr. P.C. has been filed by the accused-applicant Vijay Kumar Upadhyay with the prayer to quash the criminal complaint No. 13 of 2009 Sureshji Rajpoot @ Suresh Chandra Rajpoot v. Vijay Kumar Upadhyay, under Section 138 Negotiable Instrument Act, (herein after referred to as the Act) Police Station Nawabad, District Jhansi, pending in the Court of Additional Chief Judicial Magistrate, Court No. 8, Jhansi and also to quash the summoning order dated 17.2.2010 passed in the aforesaid complaint. The facts of the case are that opposite party No. 2 Sureshji Rajpoot @ Suresh Chandra Rajpoot filed a complaint against the applicant with the allegations that the complainant (opposite party No. 2) and the accused (applicant) were neighbors being Shiksha Mitra. The complainant was also doing the work of agriculture and Tent House alongwith the job of Shiksha Mitra. The accused asked for an amount of Rs. Two lakhs from the complainant for placing a brick-kiln. The complainant, being a friend gave Rs. 1,75,000/- on 30.6.2009 to the applicant, who on the very same day issued a cheque drawn on his account in State Bank of India, Jhansi as security and towards payment of the said amount to the complainant. He also assured that as and when he receives the advance of the bricks, then within ten days he shall make payment. But when the complainant came to know in the second week of July, that the accused had already taken an advance of bricks but did not pay back the said amount, the complainant presented the said cheque in his account which was dishonoured by State Bank of India main branch, Jhansi due to insufficient funds. Thereafter, the complainant went to the accused-applicant, for his money but he asked for more time of three months. Thereafter, the complainant again presented the said cheque for payment, which was again dishonoured on 17.11.2009 due to insufficient funds, about which he was informed by the bank on 23.11.2009. Thereafter, the complainant sent a legal notice on 7.12.2009, through his counsel Sri M.K. Parashar, Advocate and also sent the notice by UPC, which was received by the accused on 8.12.2009 but after seven days he returned the notice (sent by registered post) in collusion with the postman endorsing therein that the receiver was out of station and when he still did not pay the amount within 15 days i.e. up to 22.12.2009, the complaint was filed.

(2.) After receiving the said complaint, the learned Additional Chief Judicial Magistrate, Court No. 8, Jhansi recorded the statement of the complainant under Section 200 Cr. P.C. on 21.1.2010 and after considering the entire materials available on record, the learned Magistrate, vide order dated 17.2.2010, summoned the accused-applicant to face trial for the offence punishable under Section 138 of the Act finding prima-facie case against him.

(3.) In the petition, it has been averred that the condition imposed by proviso (b) & (c) to Section 138 has not been complied with by the opposite party No. 2 as the complaint was filed on 23.12.2009, the legal notice was sent to the applicant on 7.12.2009 and was returned back to opposite party No. 2 with the endorsement of postman dated 15.12.2009 to the effect that the applicant was out of station. Assuming that the said legal notice was served upon the applicant, then it was served on 15.12.2009, when the postman had endorsed his report and the complaint was filed on 23.12.2009 and as such the said complaint was filed before expiry of the statutory period of 15 days and thus the complaint was not maintainable under Section 138 of the Act. It is also averred that the cheque was firstly returned on 22.7.2009 as dishonoured on the ground of insufficient fund but after 22.7.2009, no notice was given by the opposite party No. 2 as required under proviso (b) to Section 138 of the Act.