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2002 DIGILAW 433 (PNJ)

Archna Mangal v. Kapil Dev

2002-04-23

V.M.JAIN

body2002
JUDGMENT V.M. Jain, J. - This is a petition under Section 482 Criminal Procedure Code filed by the complainant petitioner, seeking quashment of the order dated 4.8.1998 passed by the Additional Sessions Judge, accepting revision petition of the accused against the summoning order dated 16.11.1996 and subsequent order dated 6.5.1997 serving notice of accusation upon the accused, both passed by the learned Magistrate. 2. Facts, which are relevant for the decision of the present petition, are that complainant-petitioner Archna Mangal filed a criminal complaint under Section 138 of the Negotiable Instruments Act and under Sections 406 and 420 Indian Penal Code against accused respondents Kapil Dev, proprietor and M/s Vishal Steel, through its proprietor, Kapil Dev. Said complainant was filed on 27.7.1996. On the same day, the learned trial Court directed that the complaint be registered and the case was adjourned to 6.11.1996 for recording the complainants evidence. After recording preliminary evidence, the learned trial Court vide order dated 16.11.1996 ordered summoning of the respondents as accused. After accused had put in appearance on 4.3.1997 and accused Kapil Dev was released on bail, the learned trial Court adjourned the case for serving notice of accusation. Vide order dated 6.5.1997, the learned trial Court served the notice of accusation upon the accused, to which notice accused pleaded not guilty and the case was adjourned for complainants evidence. One PW was examined and the case was at the stage of remaining evidence of the complainant when the learned Additional Sessions Judge had quashed the orders dated 16.11.1996 and 6.5.1997, passed by the Judicial Magistrate. 3. The case of the complainant-petitioner, in the present petition under Section 482 Criminal Procedure Code, was that the learned Additional Sessions Judge had misread the A.D. receipt in respect of notice sent by the complainant to the accused respondents as required under Section 138 of the Negotiable Instruments Act. Accordingly, the trial Court record was also summoned. In the present petition, notice was ordered to be issued to accused respondents. Inspite of the service being complete, as reported by the office, no one has put in appearance on behalf of the accused respondents. 4. I have heard the learned counsel for the petitioner and have gone through the record, including the trial Court record, carefully. 5. In the present petition, notice was ordered to be issued to accused respondents. Inspite of the service being complete, as reported by the office, no one has put in appearance on behalf of the accused respondents. 4. I have heard the learned counsel for the petitioner and have gone through the record, including the trial Court record, carefully. 5. Learned Additional Sessions Judge while accepting the revision petition had held that the complaint was filed before the expiry of 15 days from the service of notice regarding the dishonour of the cheque upon the accused and as such the complaint was premature. While coming to the said conclusion, learned trial Court had found that the registered notice was sent on 27.7.1996 and it was acknowledged by the accused respondents on 14.9.1996 and complaint was filed on 27.9.1996 and thus it was filed before the expiry of period of 15 days. I have gone through the A.Ds., Ex. P10 and P11. I have also gone through the registered notice copy Ex. P7. Said notice is dated 27.8.1996. Exhibits P8 and P9 are the postal receipts, with regard to the sending of notices by registered post. These receipts are also dated 27.8.1996. The A.Ds., Ex. P10 and P11 also bear postal stamps dated 27.8.1996, showing that this was the date on which the notices by registered post were sent. A.D., Ex. P10 also bears the postal stamp of 14.9.1996. It appears that the learned Additional Sessions Judge had taken this date i.e. 14.9.1996 as the date on which registered notices were served upon the accused respondents. However, this does not appear to be so. The postal stamp on the A.D., Ex. P10 giving the date as 14.9.1996, is in fact the date on which the A.D. receipt was received back by the counsel for the complaint after registered notice was served upon the accused respondents. Under these circumstances, it could not be said that registered notices were served upon the accused respondents on 14.9.1996. In fact, these notices were served prior to 14.9.1996 and after the notices were served upon the accused respondents, the A.D. receipts were sent to the counsel for the complainant and the date of delivery of said A.D. receipts to the counsel for the complainant bear the postal stamp of 14.9.1996. Thus, 14.9.1996 could not be taken as the date of delivery of registered notices. Thus, 14.9.1996 could not be taken as the date of delivery of registered notices. Further more, both the postal receipts, Ex. P10 and P11, bear the signatures of addressee. No date is given by the accused showing the date on which he had received the notices. In my opinion, at this stage, the learned Additional Sessions Judge had erred in law in holding that the complaint was premature, merely because on the A.D. receipt, Ex. P10, there was postal stamp of 14.9.1996. If the registered notices were served upon accused prior to 14.9.1996, it could not be said that on 27.9.1996, when the complaint was filed, it was premature. The finding that the complaint was premature could be given by the Additional Sessions Judge only if there was enough evidence to show as to on which date the registered notices were served upon the accused respondents. In the absence thereof, in my opinion, the learned Addl. Sessions Judge could not have given the finding that the complaint was premature. 6. For the reasons recorded above, in my opinion, the order dated 4.8.1998 passed by the Addl. Sessions Judge is liable to be set aside. Ordered accordingly. The orders passed by the learned Magistrate are upheld. The question as to whether the complaint is premature would be open to be decided by the trial Magistrate, on the basis of the evidence that may be led by the parties in support of their respective contentions. 7. Nothing stated above shall be taken as an expression of opinion on the merits of the case. 8. Petitioner through her counsel, is directed to appear before the learned trial Court on 30.5.2002 for further proceedings in accordance with law. 9. Trial Court record be sent back forthwith alongwith a copy of this order. Trial Magistrate shall proceeded to decide the case in accordance with law, after issuing notices to the accused respondents. Order accordingly.