DHANRAJ Vs. ASHOK KUMAR

JUDGEMENT

(1.) The applicant/ accused has filed this petition under Section 482 of Cr. P. C. being aggrieved by the order dated 28.9.2012 passed by 1st Additional Sessions Judge, Gadarwara District Narsinghpur in Criminal Revision No.104/12 affirming the order dated 2.9.2009 passed by JMFC Gadarwara in Criminal Case No.1076/2009, whereby in a private complaint filed by the respondent for prosecution of the applicant the cognizance of the offence of Section 138 of Negotiable Instruments Act has been taken.

(2.) Petitioner's counsel after taking me through the papers placed on record and the averments of the petition argued that the impugned cognizance was taken by the trial Court without following the procedure prescribed under Section 200 and 202 of Cr. P. C. As such neither the statement of complainant nor his witnesses were recorded and only on the basis of some affidavit of complainant the cognizance of the aforesaid offence was taken, which is not permissible under the law. In continuation he said that as per averments of the complaint the statutory notice to make the demand of sum of the cheque, as alleged was sent through the registered post but the same was not served on the applicant as reflected from the acknowledgment due receipt but taking into consideration such acknowledgment due receipt the trial Court has taken the cognizance, such approach of the trial Court is not sustainable under the law and prayed for quashment of the impugned complaint by admitting and allowing this petition.

(3.) On the other hand responding aforesaid arguments by justifying the impugned order Shri Ramesh Tamrakar, learned counsel of the respondent argued that the approach of the trial Court being based on proper appreciation of the evidence available on the record so also in compliance of the provision of Section 145 of Negotiable Instruments Act as well as in accordance with provisions of presumption regarding service of notice through registered post on addressee enumerated under the General Clauses Act, Post Office Act and Evidence Act do not require any interference and prayed for dismissal of this petition.