IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 385 of 2004 M/S Apex Traders , 4B Dhama wala, P.S. Kotwali Dehraldun, District Dehradun, at present 14-A Mohani Road, Dehradun District Dehradun, through its Proprietor Satish Jain S/o Mahendra Jain, R/o 14-A Mohani Road, Dehradun, District Dehradun …Petitioner. Vs. 1- State of Uttaranchal 2- Gandhi Gramudyog Kendra through its proprietor Gorav S/o Krishan Kumar Gandhi, R/o 3 Railway Road Haridwar, District Haridwar --- Respondents. Sri Sandeep Tandon, learned counsel for the petitioner. Sri Rakesh Thapliyal, learned counsel for the respondent No.2. Sri Pabhakar Joshi, learned A.G.A. for the respondent / State. Dated: 09-1-2008 Hon'ble B.C. Kandpal, J. By way of this petition, U/S 482 of the Cr.P.C., the petitioner has sought the relief to set aside the order dated 19-7-2004, passed by Additional Sessions/F.T.C. -II, Haridwar in Crl. Revision No. 456 of 2003, and the order dated 11-9-2003 passed by Special Judicial Magistrate, Haridwar, in Criminal Case No. 506 of 2003 ( Old No. 259 of 2003 ) Gandhi Gramudyog Kendra Vs. Apex Traders, U/S 138 of the Negotiable Instrument Act. 2- Brief facts of the case giving rise to this petition are that the respondent No.2 filed complaint U/S 138 of the Negotiable Instrument Act against the petitioner with the allegations that the petitioner purchased shawls, blankets etc from the respondent amounting to Rs. 1,30,350/ - and paid Rs. 8350/ - in cash. For the balance amount of Rs. 1,22,000/- issued cheque No. 0014431 in favour of the respondent No.2. when the cheque was presented before the concerned bank the same was dishonoured . The cheque was again presented on 20.3.2003 but the same was again dishonoured by the bank. The respondent No.2 sent notice to the petitioner Firm on 10-4-2003 and the notice was served upon the petitioner firm but despite service the amount was not paid to the respondent No.2. therefore the complaint was filed on 12-5-2003 before the A.C.J.M. Haridwar. The learned Magistrate recorded the statements of the complainant and its witnesses U/S 200 and 202 Cr.P.C. and finding prima facie case U/S 138 of the Negotiable Instrument Act, took cognizance against the petitioner vide order dated 11-9- 2003. feeling aggrieved by the aforesaid order the accused/petitioner also filed criminal revision before Additional District & Sessions Judge/F.T.C. - II Haridwar, who vide judgment and order dated 19-7- 2004 dismissed the same. 3- Now the accused/petitioner has approached this court by filing this petition to set aside the above orders passed by the courts below on the ground that the petitioner was not served with the notice by the respondent No.2 as he was not residing at the address shown in the notice. The complaint so filed was premature and the same should have been rejected instead of taking cognizance of the learned Magistrate. The revisional court also committed manifest error in dismissing the revision of the petitioner and confirming the order of the Magistrate. 4- Counter affidavit has been filed on behalf of the respondent No.2 denying the allegations made in the petition. It has been averred in the counter affidavit that compliance of the relevant provisions of Negotiable instrument Act has been made in the present case. The fact about insufficiency of service of notice shall be considered at the time of trial. The orders passed by the courts below do not suffer from any infirmity and the petition has no substance. 5- Heard learned counsel for the parties and perused the material on record. 6- After having considered the submissions raised by the learned counsel for the parties an going through the impugned judgment and orders passed by the courts below, I do not find any abuse of process of Court in the present case. The judgment passed by the revisional court reveals that the notice was sent to the petitioner through registered post as well as U.P.C. and the U.P.C. was not received back and it was presumed that the same has been served upon the petitioner. This fact was also deposed by the complainant in the statement U/S 200 Cr.P.C. It may also be noted here that the ground taken by the petitioner is diputed question of fact and the same shall be judged during trial. This Court at present cannot adjudge the same as the evidence is yet to be adduced by the parties before the trial court. The presumption drawn by the trial Magistrate as well as the revisional court on the point cannot be said to be unfounded. I do not find any manifest error in the orders passed by both the courts below. 7- For the above reasons and in the facts and circumstances of the case, I do not find any substance in the petition U/S 482 of the Cr.P.C. and the same is liable to be dismissed. 8- Accordingly, the petition is dismissed. The interim order dated 14-9-2004 stands vacated. ISB (B.C. Kandpal,J.)