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2011 DIGILAW 1683 (ALL)

Rajesh Arora v. State of U. P. and Another

2011-07-13

NAHEED ARA MOONIS

body2011
Hon’ble Naheed Ara Moonis, J. : Heard the learned counsel for the applicant, learned A.G.A. and perused the record.2. The instant petition has been filed with a prayer for quashing the summoning order dated 1.9.2009 passed by the Judicial Magistrate, Court No.5, Mathura in Complaint Case No. 205 of 2009, Tej Pal Vs. Rajesh Arora, under Section 138 Negotiable Instrument Act, police Station Raya, district Mathura.3. The contention of the learned counsel for the applicant is that the complaint filed by the opposite party no. 2 in respect of the cheque issued by the applicant was dishonoured by the bank due? to insufficient amount. The notice was sent by the opposite party no. 2 on 13.2.2009 by a registered post thereafter a complaint was filed on 26.3.2009 but the complaint does not indicate as to when the applicant has received the said notice, therefore, in the absence of mentioning the date of receiving of the notice? the complaint is defective and barred by the provisions of Section 138 Negotiable Instruments Act. It has further been contended that the summoning order passed by the court below on the basis of the affidavit filed in support of the complaint moved by the opposite party no. 2 suffers from manifest error of law hence the same is liable to be quashed.4. Per contra learned A.G.A. has contended that there is no illegality in the order passed by the court below as the Act itself provides that the cognizance can be taken on the basis of the affidavit filed in support of the complaint and in case the date of receiving of notice is not mentioned in the complaint it cannot be held that complaint is not maintainable. The submission of the learned A.G.A. finds force as the Apex Court in the case of M/s Indo Automobiles Vs. M/s. Jai Durga Enterprises and others, 2009 (1) A.L.J. 245 has held that the summoning order on the ground that notice not served on the respondents cannot be quashed.? In the case of K. Bhaskaran Vs. The submission of the learned A.G.A. finds force as the Apex Court in the case of M/s Indo Automobiles Vs. M/s. Jai Durga Enterprises and others, 2009 (1) A.L.J. 245 has held that the summoning order on the ground that notice not served on the respondents cannot be quashed.? In the case of K. Bhaskaran Vs. S.V. Balan and another, 1999 (7) SCC 510 it has been held that Section 138-B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgment due in a correct address, it must be presumed that the service has been made effective? merely date of receiving of the notice is not mentioned by the complainant a complaint cannot be said to be defective.5. From the perusal of the order impugned it appears that after considering the statement of the complainant along with the other documents filed in support of the case the court below has passed the order summoning the applicant to face the trial under Section 138 Negotiable Instruments Act as prima facie offence is made out against the applicant at this stage. Even otherwise the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. If the allegation made in the complaint as well as the documentary evidence brought on? record by the complainant are taken at their face value and accepted in their entirety I am of the view that the applicant has rightly been summoned by the court below.6. Therefore, the present petition has no merit. The order passed by the court below does not require any interference at this stage as there is neither any miscarriage of justice nor any abuse of the process of court. The petition is accordingly dismissed. Therefore, the present petition has no merit. The order passed by the court below does not require any interference at this stage as there is neither any miscarriage of justice nor any abuse of the process of court. The petition is accordingly dismissed. The applicant is directed to appear before the court below within 30 days from the date of receipt of the copy of the order and apply for bail in complaint Case No. 205 of 2009, under Section 138 Negotiable Instruments Act, police station Raya, district Mathura. In case the applicant appears before the court below within the stipulated time and applies for bail the court below shall consider the same in accordance with law.__________