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2016 DIGILAW 1849 (HP)

Poonam Sharma v. Kamal Dev Sharma

2016-09-01

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. The petitioner has sought setting aside and quashing of summoning order dated 16.3.2013 rendered in complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015), pending before the learned Judicial Magistrate 1st Class, Kasauli and all other consequential orders. 2. “Key facts” necessary for the adjudication of this petition are that the respondent had cordial and family relations with the petitioner and out of the relationship, the petitioner along with her husband approached him and requested to provide her financial assistance to the tune of Rs. 2,00,000/-. The petitioner issued cheque of Rs. 2,00,000/- bearing No. 011605 dated 10.10.2012 drawn on Bhagat Urban Cooperative Bank Ltd. Chambaghat. The respondent presented the cheque for its encashment through his banker i.e. Central Bank of India, Dharampur Branch. The banker of the respondent sent the same for its collection to the drawee bank but to the utter surprise the cheque was dishonoured by the drawee bank and returned the same as unpaid. The respondent issued a legal notice dated 28.1.2013 to the petitioner which was sent through registered post. Thereafter, the respondent filed complaint under Section 138 of the Negotiable Instruments Act on 13.3.2013 against the petitioner. The preliminary evidence of the respondent was recorded on 16.3.2013 in complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015). The summons were issued to the petitioner vide order dated 16.3.2013. The trial Court put notice of accusation to the petitioner on 12.5.2015. She pleaded not guilty and claimed trial. The evidence of the respondent was recorded by the learned trial Court on 10.7.2015. The respondent filed an application under Section 311 Cr.P.C. in the Court of learned Chief Judicial Magistrate, Solan for placing on record certified copy of notice and postal receipts as exhibited in complaint No. 49/3 of 2013, titled as Kamal Dev vs. Rajinder. The reply to the application was filed by the petitioner. Application bearing No. 181/4 of 2016 was allowed by the learned trial Court on 13.6.2016. 3. It is apparent from the record that respondent infact has dispatched two legal notices on the same date, one to the petitioner and other to Rajinder Sharma. These were dispatched on 30.1.2013 against postal receipts. However, inadvertently, the notice which was issued to Rajinder Sharma has been placed along with its postal receipt in complaint i.e. complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015). These were dispatched on 30.1.2013 against postal receipts. However, inadvertently, the notice which was issued to Rajinder Sharma has been placed along with its postal receipt in complaint i.e. complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015). Similarly, in the complaint instituted against the husband of the petitioner, namely, Rajinder Sharma, bearing case No. 49/3 of 2013, the notice which was issued to the present petitioner along with the postal receipt has been annexed. 4. The fact of the matter is that respondent had issued legal notice to the petitioner on 30.1.2013 within the stipulated period. It was only inadvertently that the notice dated 28.1.2013 and receipt which was required to be placed in complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015), was inadvertently placed in complaint No. 49/3 of 2013, titled Kamal Dev vs. Rajinder Sharma. The notice which was required to be placed on record along with the postal receipt in complaint No. 49/3 of 2013 was placed in complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015). Thus, there is no illegality in the order dated 16.3.2013 whereby cognizance was taken by the trial Court, petitioner was summoned in complaint No. 50/3 of 2013 (RBT No. 147/3 of 2015) and notice of accusation was put to the petitioner on 12.5.2015 and order dated 13.9.2016, whereby an application preferred under section 311 Cr.P.C. by the respondent has been allowed. 5. Accordingly, there is no merit in this petition, the same is dismissed so also the pending applications, if any.