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2008 DIGILAW 1307 (PNJ)

Basant Gopal Sharma v. Amar Nath Gupta

2008-08-04

AJAI LAMBA

body2008
Judgment Ajai Lamba, J. 1. The petitioner herein filed a complaint under Section 138 of the Negotiable Instruments Act against respondent No. 1. Contention in brief is that on considering the preliminary evidence and the contents of the complaint, the respondent was summoned. Subsequently, an application was filed by the accused for review of the Court order. The application has been allowed vide Order dated 17,12.2003 by the Judicial Magistrate, Ist Class, Sonepat. The petitioner being aggrieved by the same filed a revision petition before the Additional Sessions Judge, Sonepat. The revision has also been dismissed. 2. The controversy raised before the Revisional Court was that it cannot be said that no notice had been sent. 3. I have gone through the impugned order. In Para 8 of the impugned order, the Revisional Court has come to the conclusion that the notice was valid in view of law as cited in the said para. In Para 9, however, it has been stated that the said notice had not been sent. The postal receipt on the file refers to some Delhi address. The address on the postal receipt is incomplete and therefore, the main ingredient as required under the Negotiable Instruments Act was not satisfied and notice was not sent. 4. Learned counsel for the petitioner has referred to the order of summoning passed by the Trial Court. In Para 3 of the order, the following has been recorded :- "....Thereafter, complainant on 11.2.2002 issued notice mark B seeking payment of the cheque amount within 15 days from the date of notice. The said notice was sent by registered post. Receipt thereof has been marked mark C." Copy of the complaint has been produced in Court and is taken on record. In Para 8 of the complaint, it has been mentioned that "the complainant issued registered notice acknowledgement due under Section 138 of the Negotiable Instruments Act through his counsel to both the office and residence of the respondent calling upon him to pay the sum of Rs. 5,00,000/-within 15 days of the notice. A copy of the notice and the postal receipt are enclosed herewith". 5. 5,00,000/-within 15 days of the notice. A copy of the notice and the postal receipt are enclosed herewith". 5. Contention of the learned counsel in view of the above is that when the summoning order itself disclosed that notice had been sent and the documents were marked,it would be a matter of evidence to be recorded at a later stage and therefore, the impugned order could not have been passed. Technically also, it has been pointed out that Honble Supreme Court of India in Adalat Prasad v. Rooplal Jindal, 2004(3) Apex Criminal 459:2004(4) R.C.R. (Criminal) 1 hasheld that there was no power available with the Magistrate to review its order of summoning and the remedy available was invoking the provisions of Section 482 Cr.P.C. 6. Once the pleadings are specific to the effect that notice indeed had been issued at two addresses of the respondent-accused, it would be a matter of evidence for the Trial Court to consider at the appropriate stage as to whether notice was sent as required by law or not. As noticed in the earlier part of the order, notice itself has been marked as B and the receipt has been marked as C. This material is supported by the pleadings in Para 8 of the complaint as noticed in the earlier part of the order. By virtue of the impugned order therefore, the Court has decided the issue itself and has held that no notice had been issued. Since this is a question of evidence, at this preliminary stage itself, this finding could not have been returned. The procedure cannot be circumvented as has been done by the Courts below. 7. Having regard to the facts of the case as also the law as referred, the petition is allowed. The impugned orders are accordingly set aside. 8. The Magistrate is directed to proceed with the case from the stage of summoning order. The complainant would have the right to prove that the notice was issued as required by law and the respondent-accused would have a right to disprove this fact. 9. For the delay already caused, the proceedings are directed to be concluded within four months of the receipt of certified copy of the order. 10. Parties are directed to appear on 18.8.2008.