IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 822/2007 (Under Section 482 of the CrPC) Harsh Goel …….Applicant Versus First Addl. Chief Judicial Magistrate, Haridwar, And Others. ……Respondents Mr. Narendra Bali, Advocate, for the applicant. Mr. Nandan Arya, AGA, for the State. Mr. R.K.S. Verma, Advocate, for the private respondent no. 2. 17th November, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this Criminal Miscellaneous Application, the applicant has sought to quash the Complaint Case No. 1015/2007, Amjad v. Harsh Goel, and has also prayed to quash the order of cognizance dated 3.10.2007 passed therein asking the applicant Harsh Goel to stand trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’). 2. The facts in controversy, as appear from the petition, are that the applicant Harsh Goel issued a cheque dated 10.4.2007, drawn at Punjab National Bank, Jwalapur Branch, for the payment of rupees one lakh fifty thousand to the complainant Amjad Ali. The said cheque was issued in order to return the money, which Harsh Goel had taken as debt from the complainant Amjad Ali in January, 2007 citing his business needs. At that time, Harsh Goel had promised to return the said money in March, 2007, but the same was returned through the cheque, in question, dated 10.4.2007. While handing over the said cheque to Mr. Amjad, the applicant Harsh Goel had requested him to present the same for encashment only in the last week of August, 2007. 2 Acceding to his request, Mr. Amjad presented the aforesaid cheque on 31.8.2007 before his banker, namely, Oriental Bank of Commerce, Bahadarabad Branch, but the same got dishonoured by the Punjab National Bank for want of sufficient fund in the account of the drawer of the cheque. Amjad Ali was informed by his banker accordingly vide bank memo dated 9.9.2007. Thereafter Amjad Ali issued a notice dated 11.9.2007, as envisaged under Section 138(b) of the Act, to the applicant demanding payment of his money. The said notice was received by Mr. Harsh Goel on 17.9.2007, as has been stated in paragraph 4 of the petition. Later, Mr. Amjad Ali filed the impugned complaint dated 28.9.2007 for recovery of the money. 3. Although, as per the provisions of Section 138(c) of the Act, the applicant was entitled to make the payment in compliance of the demand notice within 15 days from the receipt thereof, and this way, he was entitled to return the money up to 2.10.2007, and the complaint could have been filed only thereafter, but the same was filed prematurely on 28.9.2007. This irregularity, on behalf of the complainant, is not so considerable in view of the judgment of the Full Bench of the Hon’ble Apex Court rendered in the case of C.C. Alavi Haji v. Palapetty Muhammed & Another, reported in (2007) 6 SCC 555. In that precedent, the Hon’ble Apex Court, while interpreting the provisions contained under Section 138 (b) and (c) of the Act, has held that when it is argued that no notice was sent or received, as envisaged under Section 138(b) of the Act, but the accused received copy of the complaint with summons, then the course open to the drawer of the cheque is to make payment of the cheque amount within 15 days of the receipt of the summons and, on that basis, submit to the court that the complaint be rejected, and in case, he does not 3 do so, then the accused cannot be permitted to contend that there was no proper service of notice. 4. In the instant case, the applicant/drawer has admittedly received the notice and thereafter summons from the court below, which drove him to move this petition before this Court, but he did not make payment of the cheque amount. Hence, in view of the above authority of the Hon’ble Apex Court, the premature filing of the complaint is of no help to the applicant accused inasmuch as he failed to make payment even after receiving the summons from the court below. 5. Learned Counsel for the applicant has drawn the attention of this Court towards a small publication made by the applicant in a local newspaper “Pradhan Times” 12.4.2007, whereby he has got published an information that his blank cheque dated 10.4.2007, drawn at Punjab National Bank, Jwalapur Branch, had lost. This publication was regarding the cheuqe, in question. Apparently, this is a defence, which Mr. Harsh Goel tried to create in his favour, but the same is quite unacceptable in view of the facts and circumstances of the case. Accordingly, this defence, whereby the applicant has purported to have lost the cheque, in question, is rejected. Moreover, had the cheque, in question, been blank, then the forged signatures of the drawer would have been pointed out by his banker. But in the instant case, the said cheque got dishonoured not on account of some mismatch of the signatures of the drawer, but because of insufficient fund in his account. It indicates that the applicant accused had, in fact, issued the said cheque to the complainant. 4 6. In view of my foregoing discussion and the above- narrated legal proposition, this petition has no force and the same is liable to be dismissed. Petition is, accordingly, dismissed. Stay order dated 1.11.2007, passed by this Court, is hereby vacated. 7. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 17.11.2011 Prabodh