IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application(C482) No. 836 of 2007

Smt. Deep Shikha

W/o Shri Mukesh Kumar Agarwal

R/o Mohalla Bhura Batasha Gali,

Tehsil Kashipur, P.S. Kashipur

District Udham Singh Nagar

.................Applicant.

Versus

1. State of Uttarakhand

2. Rampal Singh, S/o Chura Mal

R/o Village Karimpur, Post Rahmat Ganj P.S. Swar, District Rampur (UP)

..........Opposite parties

Shri G.C. Lakhchaura, Advocate present for the petitioner. Smt. Mamta Bisht, A.G.A. present for respondent No. 1. Shri Sudhir Kumar, Advocate, present for respondent No.2.

Hon'ble Prafulla C. Pant, J.

By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973(for short Cr.P.C), the petitioner has sought quashing of the proceedings of criminal complaint case No.4336 of 2007 Rampal Singh vs. Deep Shikha relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, Police Station Kashipur, pending in the court of Judicial Magistrate, Kashipur.

2

3. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit.

4. Brief facts of the case are that the respondent No. 2 Rampal Singh filed criminal complaint case No. 4396 of 2007 with the allegation that as a part of consideration of the property sought to be transferred, complainant/petitioner Deepshikha gave a cheque No. 227071 of Kashipur Urban Co- operative Bank Ltd. for an amount of Rs. 9,00,000/-, but when the same was presented by the complainant, the bankers dishonoured the cheque on the ground of insufficient funds. On this complainant (present respondent No. 2) sent a notice dated 25.08.2007, which could not be served on the petitioner. Thereafter notice dated 10.09.2007, was got sent by registered post which was served on the petitioner. Thereafter the complainant filed criminal complaint on 20.09.2007, before Judicial Magistrate, Kashipur in which after recording of statement of the complainant under section 200 of Cr.P.C., the petitioner was 3

summoned to face the trial in respect of offence punishable under section 138 of Negotiable Instruments Act, 1881.

5. Learned counsel for the petitioner drew attention of this Court to clause ( c) of the proviso to section 138 of Negotiable Instruments Act, 1881, and it is argued that only after waiting for fifteen days from the date of receipt of notice, the criminal complaint could be maintainable. Clause (c ) of proviso to section 138 provides that the prosecution under section 138 shall not be made if the drawer of the cheque makes a payment of the amount payable within the period of fifteen days of receipt of notice. Clause (b) of section 142 provides that criminal complaint shall not be entertained after one month of cause of action arose under section 138. As such there is no express bar in the law to entertain the criminal complaint within fifteen days on service of notice. On behalf of the petitioner attention of this Court is drawn to the case of Shakti Travels & Tours vs. State of Bihar and another (2002) 9SCC page 415 and it is argued that the criminal case within fifteen days of service of notice is not maintainable . 4

On going through the said case, this Court finds that in that case the complainant had not pleaded that the accused was served with the notice. In that circumstance the Apex Court held that the complaint is not maintainable.

6. On the other hand on behalf of the respondent No. 2 reliance is placed in the cases of Narshingh Das Tapadia vs. Goverdhan Das Partani 2000SCC page 1326, Smt. Hemlata vs. State of U.P. 2003(1) DCR 36, Firm Naveen Project Ltd. Vs. State of Rajasthan 2005 (2) DCR 534 Prashant M. Aachawal vs. Gulab Singh Raghuvanshi 2008(1) DCR 13 and Sant Kumar Khera vs. State of U.P. 2007(1)DCR

604. In all these cases the Apex Court and the various High Courts have held that a premature complaint after service of notice within fifteen days, if filed, is maintainable, but summoning order can be issued and cognizance can be taken after a period of expiry of fifteen days of service of notice. In the present case petitioner has admitted that he was served with notice on 17.09.2007. The impugned summoning order has been passed on 12.10.2007 i.e. fifteen days after service of 5

notice. It is nobody's case that the criminal compliant was filed prior to service notice on the petitioner. That being so in view of the Principle of Law laid down by the Apex Court in Narshingh Das Tapadia (supra) and the judgment of the Allahabd, Rajasthan, Madhya Pradesh High Courts (referred above) this Court is of the view that the criminal complaint filed by the respondent No. 2 after service of notice on the petitioner but before expiry of fifteen days, cannot be quashed under section 482 of Cr.P.C., particularly when the cognizance has been taken after the expiry of fifteen days of service of notice.

7. Therefore the petition under section 482 of Cr.P.C., is dismissed with the observation if the petitioner surrenders before court concerned, his bail application shall be heard and disposed of without unreasonable delay.

(Prafulla C. Pant, J.)

Dt:23.04.2010

parul

6