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2017 DIGILAW 1062 (HP)

Gautam Sales Corporation v. Usha Rani

2017-09-13

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant petition is directed against the concurrently recorded verdicts by both the learned Courts below, whereby the Courts below convicted besides concomitantly sentenced the accused/convict for theirs committing offence(s) punishable under Section 138 of the Negotiable Instrument(s) Act. The convicts are aggrieved therefrom, whereupon they are led to institute the instant petition before this Court, for hence striving for its reversal. 2. At the outset, the learned counsel for the petitioners/convicts has fairly submitted before this Court that her espousal before this Court, for ripping apart the validity(s) of the impugned verdicts would, remain confined to theirs being ridden with an inherent infirmity, arising, from the indispensable statutory pre condition for empowering the Magistrate concerned, to, take a valid cognizance upon the offences arising from the dishonour of Negotiable Instrument, condition precedent(s) whereof, is embodied in the trite factum of the mandatory statutory notice, standing evidently served upon the petitioner/convict, remaining hereat not meted compliance. She contends that hence no valid cognizance could be taken upon the apposite complaint, also all further proceedings and ultimately the verdict(s) of conviction concurrently pronounced by both the learned Courts below are thereupon concomitantly vitiated. 3. However, for determining the vigor of the aforesaid submission, it is imperative to allude to the relevant paragraph-17 of the verdict recorded by the learned trial Magistrate, para whereof is extracted hereinafter: “No doubt, the accused have tried to dispute the service of Notice dated 31.7.2007, Ex. C4, but the cross-examination done by him in that regard is of no succor, moreso when the accused had admitted very specifically while answering question No. 6 that the complainant had served Regd. AD Notice dated 31.7.2007, upon them, asking them to discharge debt within 15 days, but despite that, they did not discharge the debt Ext. C4 is Regd. AD Notice dated 31.7.2007 and Ext. C5, is its postal receipt. Ex. C6 is acknowledgement due and it bears signatures of the accused and it goes to show that the aforesaid notice was served upon the accused on 2.8.2007, but despite that the accused did not discharge the debt. C4 is Regd. AD Notice dated 31.7.2007 and Ext. C5, is its postal receipt. Ex. C6 is acknowledgement due and it bears signatures of the accused and it goes to show that the aforesaid notice was served upon the accused on 2.8.2007, but despite that the accused did not discharge the debt. Even the law has gone to the extent that even if the notice is not received by the accused, he can absolve the liability by making payment of cheque amount within 15 days of the receipt of summons from the court on a complaint instituted against him.” 4. A perusal of apt portion of the aforesaid paragraph unveils that though there was a visible frail attempt, on the part of the petitioner/accused, to deny its, his being served with a statutory notice, notice whereof is borne in Ext. C4, yet with the accused/convicts during the course of proceedings undertaken under the provisions of Section 313 Cr. P.C., rendering affirmative answer(s) to the apposite affirmative question No. 6, query whereof appertained to his, its being served on 31.7.2007, with the statutory notice borne in Ext. C4, thereupon the aforesaid contention addressed before this Court by the learned counsel for the petitioners/convicts, is rendered emaciated. 5. Consequently, there is no merit in the instant petition and the same is dismissed. The impugned verdicts of both the Courts below are affirmed and maintained. The sentence of imprisonment imposed upon the convicts be forthwith put to execution by the learned trial Magistrate. All pending application(s) if any, are also disposed of. No costs.