PRADEEP KUMAR ABROL Vs. RAKESH SETH

JUDGEMENT

(1.) THIS appeal by the complainant is directed against the order of the Additional chief Judicial Magistrate, Sundernagar in case No. 6-1/2003/2-III/2003 dated 24. 9. 2005, whereby he has discharged the accused.

(2.) THE facts in brief are that the complainant ashwani Kumar Abrol had filed a complaint through his General Attorney Pradeep kumar against respondent Rakesh Seth under Section 138 of the Negotiable instruments Act read with Section 420, l. P. C. In the Trial Court on behalf of the complainant, it was submitted that the complaint be treated as being under Section 138 of the Negotiable Instruments Act only.

(3.) THE complaint relates to dishonouring of cheque No. SML/cd No. 0350714 dated 25. 4. 2002 alleged to have been issued by rakesh Seth in favour of the complainant. According to the averments made in the complaint the cheque was deposited by him in his bank for encashment and thereafter the same was dishonoured on 5. 10. 2002 with the remarks "insufficient funds. " Thereafter legal notice dated 31. 10. 2002 was sent by the complainant to the accused through his Counsel which "was received by the accused on 5. 11. 2002. The complaint was instituted on 27. 12. 2002. Apparently the complaint had not been filed within time. However, when the office report was made no such objection was recorded. On 6. 1. 2003 the matter was adjourned to 22. 5. 2003 without recording any statement. On 22. 5. 2003 the complainant filed an application under section 142 (b) of the Negotiable instruments Act for condoning the delay in filing the complaint. Thereafter, the preliminary evidence of the complainant was recorded on 16. 1. 2004 and on 21. 2. 2004 the Court issued process against the accused and directed him to appear on 15. 3. 2004. It is pertinent to mention that no order was passed on the application under Section 142 (b) of the Negotiable instruments Act nor any notice thereof was given to the accused.