NIRANJAN SAHOO Vs. UTKAL SANITARY BBSR

JUDGEMENT

(1.) Heard. Perused the written note of submission and the impugned order.

(2.) Opposite party lodged a complaint case vide ICC No.5 of 1995 against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the 'Act') alleging therein that a cheque for Rs.5,000/- issued by the petitioner in favour of the opposite party with a view to discharge his liability was returned by the Bank without payment on 8-21-1994 with the endorsement of 'insufficient funds'. On 21-12-1994, in accordance with Section 138 proviso (b) of the Act opposite party sent a notice. On 28-12-1994, petitioner refused to receive the notice. Hence, on 3-1-1995 opposite party filed the complaint petitioner in the Court of S.D.J.M., Bhuwaneswar alleging commission of the offence under Section 138 of the Act. The S.D.J.M. took cognizance and issued process under Section 204 of the Code of Criminal Procedure, 1973 (in short, 'the Code'). After appearing in that case petitioner challenged the order of cognizance and prayed to quash it on the ground that complaint case was filed before expiry of 15 days from the date of refusal of notice and therefore in view of the provisions of Sections 138 and 142 of the Act, the complaint case was premature and not maintainable.

(3.) Learned S.D.J.M. rejected the aforesaid contention on the ground that refusal to receive notice cannot be treated as service of notice and that the provisions of law in the Act is silent as to how the period of limitation is to be computed in case of refusal to receive notice. According to learned S.D.J.M., since the petitioner had not paid the amount due in spite of dishonour of the cheque and even after expiry of 15 days time from the date of offer of the notice on him, hence the complaint case should continue.