Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1023 (ALL)

Om Narayan Kushwaha v. State of U. P.

2016-03-18

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the complainant and perused the record. 2. This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 29.10.2015 passed by Additional Chief Judicial Magistrate-II, Kanpur Nagar and entire proceeding of Complaint Case No. 3342 of 2013 (Pradeep Pratap Singh Vs. Om Narayan Kushwaha) under Section 138 of Negotiable Instrument Act, Police Station Barra, District Kanpur Nagar. 3. Submission of the learned counsel for the applicant is that complaint is premature. No cause of action was arisen in favour of the complainant to file the present complaint as notice is said to have been sent on 10.10.2011. Specific date for service of notice has not been disclosed. Calculation of 15 days for making the payment of the amount if taken into consideration, the complaint cannot be made. Learned counsel for the applicant has placed reliance on the law laid down by the Supreme Court in case of Yogendra Pratap Singh Vs. Savitri Pandey and another reported in (2014) 10 SCC page 713. 4. Learned counsel appearing for opposite party no. 2 and learned A.G.A. argued that complainant in para no. 5 of the complaint has specifically mentioned that notice sent by the complainant was served upon the applicant but no amount was paid despite service of the notice. It was further argued that both the parties are residing in the same city. Notice was sent on the correct address of the applicant, hence it shall be presumed that in ordinary course notice has been served. If the 15 days time for making the payment is counted then also on the date of filing of the complaint, cause of action has arisen in favour of the complainant. Learned counsel for the complainant/opposite party no. 2 has placed reliance on the law laid down by this Court in Smt. Mohini Verma Vs. State of U.P. and others reported in 2016 (92) ACC page 26. 5. I have considered the rival submission and gone through the entire record. 6. In the present matter it is admitted fact that legal notice was sent on 10.10.2011. Both the parties are residing in the same city i.e. Kanpur Nagar. Complainant in para no. 5 of the complaint has specifically said that notice was served upon the applicant. 5. I have considered the rival submission and gone through the entire record. 6. In the present matter it is admitted fact that legal notice was sent on 10.10.2011. Both the parties are residing in the same city i.e. Kanpur Nagar. Complainant in para no. 5 of the complaint has specifically said that notice was served upon the applicant. Hon'ble Supreme Court in case of Yogendra Pratap Singh case (supra) has held that if the complaint is filed without expiry of 15 days from the date of service of the notice, it shall be deemed that no cause of action was available to the complaint to file the complainant. This Court in Smt. Mohini Verma case (supra) after taking into consideration the law laid down by Supreme Court in the Case of Yogendra Pratap Singh case (supra) has held that complaint filed on 12.8.2009 on the basis of registered notice dated 18.7.2009 cannot be said to be premature. In the present matter complainant has also specifically mentioned in the para no. 5 of the complaint that notice was served upon the applicant. Keeping in view the address of the applicant and the date of issuance of notice and date of filing of the present complaint, the complaint cannot be said to be premature. 15 days time if deducted from the total period beginning from the date of sending of the notice and till the date of filing the complaint i.e. 9.11.2011, at this stage it cannot be said that the complaint was filed without expiry of 15 days from the service. In the present matter it would be presumed that notice was served upon him in ordinary course. It is not requirement of law that actual date of service of statutory notice be disclosed in the complaint. Only requirement is that the complainant must ever the mode and manner of the issuance of notice. Thus presumption of the service in due course can be made in the present matter and requirement of the law is fulfilled. Whether the notice was actually served or not, is an issue which can be considered at the appropriate stage by the court concerned. Thus, on the basis of discussions made here-in-above it cannot be said at this stage that no cause of action was available to the opposite party no. 2 to the present complaint. 7. Whether the notice was actually served or not, is an issue which can be considered at the appropriate stage by the court concerned. Thus, on the basis of discussions made here-in-above it cannot be said at this stage that no cause of action was available to the opposite party no. 2 to the present complaint. 7. Thus, this application is devoid of merit and is liable to be dismissed and is hereby dismissed.