Allahabad High Court
Om Prakash Upadhyay vs State Of U.P. & Another on 6 August, 2010
Author: Ashok Kumar Roopanwal
Bench: Ashok Kumar Roopanwal
Court No. - 48 Case :- APPLICATION U/S 482 No. - 731 of 2001 Petitioner :- Om Prakash Upadhyay Respondent :- State Of U.P. & Another Petitioner Counsel :- N.D. Shukla Respondent Counsel :- Govt. Advocate,C.K.Parekh Hon'ble Ashok Kumar Roopanwal,J.
This application under Section 482, Cr.P.C. has been moved for quashing the complaint case dated 26.6.98, annexure-1 to the affidavit, filed with the petition, under Section 138, N.I. Act filed by O.P. No.2 in the court of Chief Judicial Magistrate, Varanasi being criminal case no.10801/2000 and also for quashing the summoning order dated 11.12.98.
It appears from the record that O.P. No.2 Manjoor Parvez filed a complaint under Section 138, N.I. Act against the applicant in the court of J.M. 1St, Varanasi which was registered as case no.168/98. It was later on numbered as case no.10801/2000. It was alleged in the complaint that the complainant is the employee of the Firm S.A.S. Holding Private Limited and is competent to file the complaint on behalf of the Firm. The Firm deals in the business of financing. The applicant Om Prakash Upadhyay had taken loan from the Firm and to repay the loan he issued cheque no.108342 dated 9.11.97 for Rs.6,920/-, Cheque no.108343 dated 9.12.97 for Rs.6,920/-, cheque no.108345 dated 9.2.98 for Rs.6,920/-, cheque no.108356 dated 9.3.98 for Rs.6,920/-, cheque no.108347 dated 9.4.98 for Rs.6,920/- in favour of the complainant. When the cheques were presented in the bank for encashment, these were returned with the remark that there was no arrangement to pay the amount of the cheques from the account of the applicant. This information was received by the complainant on 6.5.98 whereupon a registered notice was sent to the applicant by the Firm.
In support of the complaint the complainant examined himself under Section 200, Cr.P.C. in which he stated the same facts which were stated n the complaint. After perusal of the statement of the complainant as well as the cheques memo of the petitioner, registered receipt and the address on which the registry was sent the trial court summoned the applicant under Section 138, N.I. Act.
Heard Mr. N.D. Shukla, learned counsel for the applicant, Mr. C.K. Parikh for O.P. No.2, learned AGA and perused the record.
It has been argued by Mr. Shukla that it was not averred in the complaint as to when the notice as required under Section 138(b), N.I. Act was sent to the applicant and when it was received by him and in absence of such averments in the complaint and in the evidence of the complainant it could not be settled as to when the cause of action arose under Section 138(c), N.I. Act to file the complaint under Section 142, N.I. Act.
To the above, it has been argued by Mr. Parikh that from para 10 of the affidavit filed by the applicant it is very much clear that the notice was sent by the complainant to the applicant at his village address at Mangura Post, P.S. Suriawan, District Bhadohi and therefore it should he held that the notice as contemplated under Section 138(b), N.I. Act was sent through registered post and the requirement was fulfilled. He further argued that as averred in the counter affidavit filed by O.P. No.2 registered notice was returned back to the complainant on 26.5.98 and that should be treated the date of service upon the applicant and from this date the complaint was well within time.
It is no doubt true that in the affidavit filed by the applicant sending of notice is admitted but as to whether it was sent on a correct address or not is a matter of evidence. From this averment of the applicant it is not clear as to whether that notice was ever served upon him nor it is clear from the averments made in the affidavit filed by the applicant that as to when the registered notice was received back by O.P. No.2. Therefore, from the averments made in the affidavit of the applicant the requirement of Section 138 (b) and 138(c), N.I. Act cannot be said to have been fulfilled.
So far as the counter affidavit filed by O.P. No.2, that can be read only in support of the allegations of the complaint and this affidavit cannot be accepted for filling up the lacuna made in the complaint. In the complaint there was no assertion as to when the notice was sent and as to when the notice was received back so as to reckon the period of limitation to file the complaint under Section 142, N.I. Act. That aspect was also not dealt with by the court below while passing the summoning oder which was necessary to arrive at a conclusion as to whether there was prima facie evidence to pass summoning order or not.
In view of the above, I do feel that it is not a case where merely on the basis of the absence of averments regarding Section 138(b) and 138(c), N.I. Act the complaint should be dismissed rather it is a case where the matter should be sent back to the court concerned for passing a fresh order by considering the aforesaid observations made by me in the body of this Judgment.
Accordingly, this petition is allowed. Order dated 26.6.98 and 11.12.98 are set aside. The matter is remanded back to the Magistrate to pass a fresh order in the light of the observations made in the body of the Judgment.
Order Date :- 6.8.2010 T. Sinha