RAJENDRA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the applicant and Sri Padmakar Rai, learned AGA for the State.

(2.) The present application u/s 482 Cr.P.C. has been filed to quash the summoning order dtd. 9/11/2022 as well as the entire proceedings of Complaint Case No.3721 of 2022 (Shiv Prakash Tiwari Vs. Rajendra), under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act, 1881'), Police Station- Nagirabad, DistrictKanpur Nagar, pending in the court of learned Metropolitan Magistrate, VIII, Kanpur Nagar.

(3.) The learned counsel for the applicant contends that the impugned complaint is itself defective as the same was filed before the expiration of 15 days from the date of service of notice. It is further contended by learned counsel for the applicant that after bouncing the cheque on 13/7/2022, legal notice was sent to the applicant by the opposite party no.2 on 23/7/2022 and, thereafter, without mentioning any date for service of notice, the complaint was filed on 31/8/2022. It is further contended by learned counsel for the applicant that in the absence of any date of service mentioned in the complaint, the presumption of 30 days under Sec. 27 of the General Clauses Act, 1977, should come into play, and it should have been filed after 45 days of sending a notice. In support of his contention, learned counsel for the applicant has relied upon the judgement of the co-ordinate Bench of this Court passed in Application u/s 482 No.98 of 2020 (Ali Jan Vs. State of U.P. and Another) vide order dtd. 31/1/2020 and another judgement of the co-ordinate Bench of this court in Application u/s 482 No.29097 of 2023 (Santosh Kumar Shrivastava Vs. State of U.P. and Another) vide order dtd. 21/8/2023. Learned counsel for the applicant has also relied upon the judgement of Yogendra Pratap Singh Vs. Savitri Pandey & Anothers reported in 2014 (10) SCC 713, as well as the judgement of Jharkhand High Court in Criminal Revision No.827 of 2012 (Manoj Kumar Nag Vs. State of Jharkhand & Another) vide order dtd. 16/7/2021. Lastly, it was contended by learned Counsel for the applicant that in the above judgment, it is clear that if the complaint is filed before the expiry of 15 days from the date of service of notice, then that is no complaint in the eyes of the law.