PALVI Vs. MUNIB KUMAR

JUDGEMENT

(1.) Through the medium of present petition, petitioner seeks quashing of order dated 17.04.2017, passed by learned Special Excise Magistrate, Jammu in File No. 07/Comp., titled Palvi v. Munib Kumar, by virtue of which the complaint under Section 138 Negotiable Instruments Act has been dismissed for non-prosecution.

(2.) It is stated in the petition that the petitioner is partner of a firm namely Nirmala Enterprises. The respondent, who claims to be the project co-ordinator of Kaushal Vikas Pehal (KVP) a project under National Skill Development Mission (NSDM) stated to be engaged for promotion of education and skill development. The respondent in order to spread his area of operation of the above said development signed a Memo of understanding with the firm of the petitioner in which the petitioner is one of the partners. The respondent very cleverly with criminal bent of mind induced the petitioner and resultantly obtained huge amount of money through petitioner. The petitioner who was also appointed as Co-ordinator for the State of J.&K. made to part huge amount of money and deposited in the account of the Respondent. The respondent in order to discharge his some of the financial liabilities accruing towards the Petitioner issued a cheque bearing No. 245898, dated 08.07.2015 amount to Rs. 3,50,000/- drawn from the Punjab National Bank at its branch Station road, Ballia (UP). That the petitioner presented the aforesaid cheque for encashment to her banker i.e. Punjab National Bank at its Branch Durga Nagar, Jammu, but the same was returned vide Memo dated 10.07.2015 with the remarks of Reference to Drawer. That the Petitioner thereafter issued a demand notice through her counsel namely Mohd. Shaban, Advocate vide No. MS/LN/20/15, dated 22.09.2015 which was sent through registered post at both the addresses of the Respondent i.e. at his residential address in U.P. as well as his official address in New Delhi. That through legal notice aforesaid a specific demand for making payment of Rs. 3,50,000/- within a period of 15 days was made, however, even after the lapse of the stipulated period specified in the legal notice, the payment as mentioned therein has not been made in favour of the Petitioner. That constrained with the circumstances the petitioner left with no other alternate but to file a complaint under Section 138, N. I. Act before the learned Chief Judicial Magistrate, Jammu, which came to be transferred before the Court of learned Special Excise Magistrate, Jammu. The learned Magistrate vide order dated 04.11.2015 took cognizance and issued process against the respondent. Various summons were issued to be served upon the respondents but service could not be effected due to one reason or other. That the petitioner has taken every step whatever were required to be taken by her, inasmuch, the summons were sent through Registered Post as well as through Courier but were not received back served or un-served. As a matter of fact the respondent deliberately avoided the service on one pretext or the other. There was confusion of fixing dates before the learned trial Court, inasmuch as the petitioner was given the date of 7th April, 2017, on which date the petitioner appeared before the learned Court and was told by the concerned clerk that next date has been fixed for 3rd of May, as such, she attended the Court on 3rd of May, when she came to know that her complaint has already been dismissed vide order dated 17.04.2017. The aforesaid fact can be confirmed from the daily PESHI register of the learned Trial court. That on coming to know about the dismissal of her complaint on 3rd of May, the petitioner moved an application on 4th of May and got the certified copy of the order dated 17.04.2017. That the petitioner is aggrieved of order dated 17.04.2017 passed by learned Special Excise Magistrate, Jammu in File No. 07/Comp, DOI 23.10.2015, titled Palvi v. Munib Kumar by virtue of which the complaint under Section 138, Negotiable Instruments Act has been dismissed for non-prosecution and seeks to challenge amongst other on the following grounds:-

(3.) Since no one has put in appearance on behalf of both sides, I have myself considered all aspects of the matter and law on the subject.