SULTAN ALAM Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the record.

(2.) This application under Sec. 482 Cr.P.C. has been filed with the prayer to quash the order dtd. 3/11/2020, passed by the learned Sessions Judge, Meerut in criminal revision no. 139 of 2020, (M. Kamal v. State of U.P. And Another), under Sec. 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act'), police station Kotwali, district Meerut.

(3.) It has been argued by learned counsel for the applicant that the impugned order is against facts and law and thus, liable to be set aside. It was submitted that opposite party no. 2 has issued a cheque of Rs.11.00 lacs in favour of applicant, which was presented in bank for encashment but it was dishonoured on 5/8/2015. The applicant has issued demand notice to opposite party no. 2 on 24/8/2015 at his last given address but it was returned back with endorsement dtd. 2/9/2015 to the effect that despite going for several times, opposite party no. 2 is not available at the given address. Thereafter, the applicant has filed a complaint under Sec. 138 of N.I. Act on 29/9/2015 and after applying the due procedure of law, the opposite party no. 2 was summoned by the court of Additional Chief Judicial Magistrate, Court no. 1, Meerut vide order dtd. 27/11/2015. It was further submitted that the said order dtd. 27/11/2015 was challenged by opposite party no. 2 by filing a criminal revision no. 139 of 2020 and the said revision was allowed by the court of Sessions Judge, Meerut vide impugned order dtd. 3/11/2020. Learned counsel submitted that in view of the report of postal department that despite going at the last given address of opposite party no. 2 for several times, the addressee is not available at the said address, it shall be deemed that notice has been duly served upon opposite party no. 2 and thus, the observation of the learned revisional court, that the presumption under Sec. 27 of General Clauses Act read with Sec. 139 of N.I. Act stands rebutted, is against law. Learned counsel submitted that the learned revisional court fell in error by disputing the service of notice upon opposite party no. 2. Further, the fact whether the said notice was duly served upon opposite party no. 2 or not, has to be examined by the trial court during trial. Opposite party no. 2 was summoned by the trial court after considering all the relevant facts and material on record. Learned counsel submitted that impugned order is against facts and law and thus, liable to be set aside. In support of his contentions, learned counsel has placed reliance upon the following case laws:-