SURENDRA KUMAR SHARMA Vs. SATYAVEER PUNIA & ANRS

JUDGEMENT

(1.) By this criminal miscellaneous petition, a challenge has been made to the criminal complaint No. 35/2005 with a prayer that same is not maintainable accordingly, the order dated 08.01.2007 (Annx. 7) may be quashed and set aside.

(2.) Coming to the facts, it is stated that petitioner had given a cheque of Rs. 50,000/ - to the non-petitioner, which was dishonoured by the Bank on its presentation, the petitioner received a notice under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act of 1881") on 06.11.2004. It was otherwise dis-patched by the complainant on 03.11.2004. On receipt of the notice, the petitioner pre-pared a demand draft of equivalent amount on 17.11.2004 and dispatched the same to the complainant through the Registered Post on 18.11.2004. The demand draft was received by the complainant in such a ma-nipulated manner that receipt is shown to be on 16th of the day. The amount of demand draft was, however, withdrawn by the complainant and thereupon, he maintained a complaint under Section 138 of the Act of 1881. The petitioner moved an application before the Court below that in the facts and circumstances mentioned above, the com-plaint is not competent, however, the said application was rejected. The Court below mainly considered the fact that defence can be considered at this time, ignoring the judg-ment if this Court as well as the Supreme Court in that respect. Reference of the judg-ment of this Court in the case of Rajesh Sarvaria v. M/s. Nikki Chemial Industries,2010 1 CrLR 108 has been given.

(3.) Learned counsel for the respondents on the other hand submit that amount of cheque was not received within the time given under the provisions of Section 138 of the Act of 1881, thus the complaint was rightly maintained. Taking note of the aforesaid, the application moved by the petitioner was rejected.