Madhya Pradesh High Court
Vijay Kumar Jain vs Ramesh Chandra Jain on 20 September, 2011
Author: G.S. Solanki
Bench: G.S. Solanki
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH
M.Cr.C. No. 13984/2011
Vijay Kumar Jain
Versus
Ramesh Chandra Jain
M.Cr.C. No. 13986/2011
Vijay Kumar Jain
Versus
Ramesh Chandra Jain
M.Cr.C. No. 13989/2011
Vijay Kumar Jain
Versus
Ramesh Chandra Jain
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Shri G.S. Ahluwaliya, learned counsel for the
applicant.
Shri Amit Jain, learned counsel for the respondent.
PRESENT :
HON'BLE SHRI JUSTICE G.S. SOLANKI
Date of hearing: 20/09/2012
Date of Order: 20/09/2012
ORDER
1. Since in all the petitions common point of law is involved therefore, they are being decided by this common order.
22. Applicant has filed these petitions being aggrieved by order dated 3/11/2011 passed by Ist Additional Sessions Judge, Khurai District Sagar in unregistered Criminal Revision arising out of the order dated 30/08/2011 passed by JMFC, Bina in criminal case nos. 868/10, 869/10 and 870/10 whereby learned Magistrate concluded to dismiss the applications on the point of limitation.
3. The facts in short giving rise to these petition are that respondent filed a private complaint against the applicant under section 138 of Negotiable Instruments Act with the pleading that when cheque has been returned back by the Bank, he issued a notice to applicant on 2/08/2010 but the same was returned unserved to respondent with an endorsement that applicant avoided the service of notice. Thereafter, respondent filed the petition u/s 138 of Negotiable Instruments Act on 20/09/2010. Applicant appeared before the trial Court and filed the petition alleging interalia that as per averment in complaint respondent received a dishonoured cheque on 29/07/2010 and he sent a registered notice on 2/08/2010. Thereafter, he filed a complaint on 20/09/2010 after 51 days therefore, the same is barred by limitation however, trial Court dismissed the aforesaid application of applicant on 30/08/2011. Being aggrieved he filed a revision petition before the Revisional Court and same was dismissed vide order dated 3/11/2011 hence, these 3 petitions.
4. Learned counsel appearing on behalf of applicant submits that trial Court as well as Revisional Court committed the illegality in not appreciating the factual aspect of the case in its proper perspective. It is further submitted that applicant has not received the notice sent by respondent therefore, the period of limitation would start from the date of issuance of notice i.e. 2/08/2010. He placed the reliance on the judgment 2008 (1) MPLJ 441 C.C. Alavi Haji Vs. Palapetty Muhammed and another.
5. Learned counsel appearing on behalf of respondent opposes the contention of learned counsel for applicant and submits that the 30 days should be excluded from the date of issuance of the notice because this 30 days time is for the presumption of the service of notice within reasonable time. He placed the reliance in para 21 and 22 of the judgment 2008 Cr.L.J. 3953 Subodh S. Salaskar Vs. Jayprakash M. Shah & Anr. and prays for dismissal of the petitions.
6. I have perused the impugned order passed by courts below alongwith the other material on record.
7. It is not disputed that respondent sent the notice to applicant on 2/08/2010. It is also undisputed that same was returned unserved on 8/09/2010 thereafter, 4 respondent filed a complaint against the applicant on 20/09/2010. It is on record that despite issuance of notice as well as receiving the summon of the Court nothing was paid by the applicant to the respondent therefore, he cannot claim that no proper service of notice u/s 138 of Negotiable Instruments Act otherwise it will be premium to avoid the receiving of notice by adopting the different strategies and escape from legal consequences u/s 138 of Negotiable Instruments Act as observed by the Apex Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyam Balan and another, AIR 1999 SC 3762. Later on, whether the point of limitation should be counted from the date of issuance of notice, the Apex Court observed in paras 21 to 23 of the case of Subodh S. Salaskar that in that case notice was having been sent on 17/01/2001 and after taking into account the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within the period of 30 days from the date of issuance thereof i.e. on or about 16/02/2001 and accused of that case was required to make payment in terms of aforesaid notice within 15 days i.e. on or about 2/03/2001 and complaint should have been filed by 2/04/2001 but the same was filed on 20/04/2001 hence it was held that same was barred by limitation.
8. Considering the aforesaid aspects of the case alongwith the fact that nothing was paid by this applicant after receiving the summon of the complaint, I am of the 5 view that trial Court has not committed any illegality. In this case, notice was issued on 2/08/2010 and after the exclusion of 30 days in regard to the presumption of service of notice within reasonable time, it should be deemed to have have been served on 1/09/2010 and applicant/accused was required to make payment in terms of aforesaid notice within 15 days i.e. on or about 16/09/2010 thereafter, complaint should have been filed till 16/10/2010 but the complainant/respondent filed the complaint u/s 138 of Negotiable Instruments Act on 20/09/2010 therefore, it cannot be said to be barred by limitation. In these circumstances, if the order passed by trial Court shall remain continue it would not amount to abuse of process of law. Thus, no case is made out for interference u/s 482 of Cr.P.C.
9. Accordingly, petitions fail and are hereby dismissed.
(G.S.SOLANKI) Judge navin