SUNITA AGARWAL Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Ashish Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.

(2.) Challenge has been raised to the order dtd. 13/12/2021 passed by the Civil Judge (Junior Division), Fast Track Court, Judicial Magistrate, Ghaziabad in Complaint Case No. 1690 of 2021 (Ashwani Bhatnagar Vs. Sunita Agarwal), filed under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). Undisputedly, the above criminal complaint was filed with delay. The cheque in question was dishonoured on 13/6/2018. It was returned with the dishonour memo on 28/6/2018. Legal notice was first issued to the Opposite party no. 2 on 26/7/2018 where aftre criminal complaint was lodged on 27/10/2018. As to the delay in lodging the complaint, the learned court below has condoned the delay and thereafter taken cognizance on the complaint and summoned the present applicant.

(3.) In such fact, a preliminary objection has been raised to the cognizance taken. According to the learned counsel for the applicant, notice ought to have been served on the applicant to allow him to object to the delay before the same may have condoned and cognizance taken. He has relied on three decisions. First, he has relied on a decision of the Tripura High Court in Sumit Deb Vs. Joy Deb and Anr. (CRL. A. No. 09 of 2020), decided on 30/5/2022. Further, reliance has been placed on a decision of the Supreme Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors., 1995 1 SCC 42 and a decision of the Andhra Pradesh High Court in D. Shyam Sunder Vs. Nella Prabhu Lingamurthy and Anr., 2010 1 ALD (Cri) 431.