SHIVRAJ PATHAK Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Bishram Tiwari, learned counsel for the petitioner and learned Additional Government Advocate for the State.

(2.) The present petition has been filed under Article 227 of the Constitution of India, challenging the order dated 20th November, 2017 passed by the Judicial Magistrate-I, Gorakhpur, in Complaint Case No. 613 of 2014 (Smt. Anju Srivastava vs. Shiv Raj Pathak), under Section 138 of the Negotiable Instrument Act, Police Station Cantt., District Gorakhpur as well as the order dated 4th May, 2018 passed by the Additional District and Sessions Judge, Court No.5, Gorakhpur in Criminal Revision No. 01 of 2018 (Shiv Raj Pathak vs. State of U.P. & Another).

(3.) From the records, it appears that the dispute between the parties is in respect of a cheque dated 28th March, 2014 given by the petitioner to the opposite party no.2. Upon presentation of the disputed cheque in the concerned Bank, the same was dishonoured. Consequently, as per mandate of Section 138 of the Negotiable Instrument Act, opposite party no.2 gave a notice to the petitioner through her counsel. After expiry of the statutory period provided for under Section 138 of the Negotiable Instrument Act, opposite party no.2 filed Complaint Case No. 613 of 2014 (Smt. Anju Srivastava vs. Shiv Raj Pathak), under Section 138 of the Negotiable Instrument Act vide complaint dated 5th May, 2014. During the pendency of the complaint case, opposite party no.2 filed an application dated 6th November, 2017 praying therein that due to inadvertence, the complaint filed by opposite party no.2 has not been numbered as exhibit and therefore, it was prayed that the said complaint be marked as exhibit. It was further prayed that the original notice dated 9th April, 2014 sent to the accused i.e the petitioner herein and the postal receipt could not be filed in evidence. It was, therefore, prayed that the complaint filed by opposite party no.2 be marked as exhibit-ka-2 and the notice sent to the accused i.e. the petitioner herein and postal receipt be marked as exhibit-ka-3. This application filed by the opposite party no.2 was objected to by the petitioner vide objection dated 17th November, 2017. The application filed by the opposite party no.2 dated 6th November, 2017 was allowed by the Judicial Magistrate-I, Gorakhpur vide order dated 20th November, 2017. Feeling aggrieved by the order dated 20th November, 2017, petitioner filed a criminal revision, which was registered as Criminal Revision No. 01 of 2018 (Shiv Raj Pathak vs. State of U.P. & Another). The same was dismissed by the Additional District and Sessions Judge, Court No.5, Gorakhpur vdie order dated 4th May, 2018.