ASHOK KUMAR AGARWAL Vs. STATE

JUDGEMENT

(1.) PRAFULLA C. Pant, J. 1. This revision, filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 07. 07. 2000, passed by Session Judge, Udham Singh Nagar, in Criminal Revi sion No. 2153/2000 whereby the Said court allowed the revision filed by the accused / respondent no. 2 Mahendra Kumar Agarwal, setting aside the order dated 01. 08. 1998, passed by Additional Chief Judicial Magistrate, Kashipur, re jecting the objection / protest petition of the accused in Criminal Complaint Case No. 692 of 1997, relating to offence pun ishable under Section 138 of Negotiable Instruments Act, 1881.

(2.) HEARD learned counsel for the parties.

(3.) SRI Sudhir Kumar, learned coun sel for the revisionist / complainant as sailing the impugned order passed by the revisional court argued that the said court has committed error of law by taking the view that since the address of the accused had changed as such if the notice sent to him was received back, it cannot be treated service on the accused / respondent. On examination of the record, I found that from the allegations made in the complaint it is clear that before filing criminal complaint against the accused in respect of offence pun ishable under Section 138 of Negotiable Instruments Act, 1881, notices were sent to the accused not only on the address of Kashipur where the firm used to do its business but also on the address of the accused / respondent no. 2, where he temporarily used to reside in Delhi. Notice sent to the accused on his busi ness address received back with the en dorsement that accused had gone out of station for quite some time. The notice sent to Delhi address was received back with the endorsement that he has left the address. In these circumstances, this Court is of the view that accused can not take benefit of concealment of his address after he left Kashipur i. e. his place of business for sometime. Apart from this once the allegations made in the complaint were found true by the Magistrate after recording the statement of the complainant under Section 200 Cr. P. C. and considering other papers on record and accused was summoned, the prosecution of the criminal complaint could not have been set aside on the ground of factual disputes raised by the accused in his objections without record ing evidence on that point. At the most on the basis of the objections what can be said is that the accused is disputing his address and receipt of notice. Dis puted fact as to the address of the ac cused could not have been a ground for setting aside the prosecution and dis missing the complaint. Learned Sessions Judge, who passed the impugned order, should have permitted the complainant to adduce the prosecution evidence and the accused was at liberty to rebut the same by adducing evidence in defence. The summoning order in the criminal complaint could not have been set aside particularly when it was passed on the evidence on record adduced by the com plainant.