-l^ /^ ?J 'i^ 'iS?' 'y HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONBR : Ct.M.P. No. 535/2008 Raju Sahu, Age-42 years, S/o Shri Bachai Lal, R/o- Tuingaon Road, Near Church, P.S.-Mahasamund, Distt- Mahasamund (C.G.) VERSUS KESPONDBNT:- Navin. Kumar Chandrakar, Age-39 Yrs, S/o Shri Manliarau Lal Chaudrakar, R/o - Ward No.12, P.S.-Mahasamund, Distt.- Mahasamuad (C.G.) CRIMINAL MISC. PBTITIOH UNDER SBCTIOBI 482 OF THB CODE OF CRIMIKAL PROCEDURE, 1973. (SB :Hoa'ble Mr. T.P.Sliarma, J.) Present:- Shri Jameel Akhtar Lohani , Advocate for the petitioner. OSAL- ORDER (Passed oa 26/11/2008} 1. This petition is directed ^ainst the order dated 1/9/2008 passed by the Additioaal Sessions Judge, Mahasamund in crmunal revision No, 04/ 2007, afBrming fhe order dated 2/2/2007 passed by Judicial Magistrate First Class, Mahasamund in crimiaal Complamt Case N0. 99/2006. Judicial Magistrate First Class has framed the charge agam.st the appUcant for the offence punishable under Section 138 of the Negotiable Instnuuents Act, 1881 (hereinafter referred to as 'the act1) aad rejected the objection filed on behatf of the appUcaat. 2. Shri Jameel Akhtar Lohani, Advocate for the appUcaat are heard. 3. Order impugned, copy ofcoiaplaint aad ofher documents are perused. 4. Leanied counsel for the appUcant submits that in case of oSence piinishable under Section 138 of the Act notice of deinand in temis of Clause -( c) ofthe proviso to section 138 offheAct is condition precedent ai • » .iveKS-SiS&l^ 'MiS'. S ""!"'^ g ... .s-'; ^ ^- tgt *rtA'!i;H*tfs°fcl ^^•:^e^'^^^i^~:'.~<^ and in abseuce of auy service of such notice coinplaint is mamtamable. Learaed couasel for fhe applicaat subiaits that ia that case appUcaut is not a resident of Subhash N^ar Road, Mahasamund near F.C.I. of&ce, he is a resident ofnear Charch Tuuigaon Road, Mahasamund alleged notice has not been issued aad served on tbe applicaiit at his actual address but it was sent to wrong address and same was retumed iinserved. Leamed counsel for ftie applicaat placed reliaace TII fhe matter of Krisliaa Exports and Others v. Raiu Das1 reported m 2006(2) M.P.H.T. 437 (SC), in which Apex Court has held that letter requiring iminediate payiaent of fhe ainount of cheque wiffa threat of legal action if payiaent is necessai5r in. clause ( C ) of the proviso to Section 138 of fhe Act. In fhat case one coiniaurucation was sent to ftie accused which was not in clear tenns of deinaad to niake payinent and not wifh threat oflegal action. 5. Leamed counsel for the appKcant further placed rellaace ia the inatter of Sridhar M.A. v. MetaUov N. Steel Cotporation2 reported in (20001 1 SCC 397 ia which it has been held by the Apex Court tliat stafrutoiy notice of deeiued and its service is required to prove. Leamed coiuisel for the applicaiit further place reUaace in the matter ofChunnilal Shartna v. Sait. Vidya Sharma3 reported ia M.P. Weekly Notices 2008 (11 M.P.W.N. 66 ia which it has held by fhe High Court of Madhya Pradesh fhat retum of rtotice with endorseiuent that addressee was not present ia the house is uot sufficient conipliauce and not sufficient for service of notice. In the iastaut case docunient speciaUy copy of envelop filed on behalf of fhe applicant shows fhat notice was issued to fhe appKcant ia the Subhash Nagar Road, Mahasamund near F.C.I. office aad it was not served personaUy on the ' 2006(2) M.P.H.T. 437 (SC). 2 (2000) 1 SCC 397 3 M.P. WssMy Notces 20CB (1) M.P.W.N. 66 ! appUcaat but endorsement of the postmau shows that after receivuig fhe iutunation addressee has not taken notice then it was retumed after 7 dsiys to the sender's. The endorseinent of postman who is public servaat reveals that fhe facts of notice was mtimntp.rl to the present appUcaat and after havuig knowledge he has not taken auy step to receive the same therefore, it was sent back to fhe complaiaant fhat amount to refusal of the notice and is sufficient coinpUaace of Clause -( c) ofthe proviso'to section 138 ofthe Act, Takiug in.to consideration fhe factum. of service of notice, I do not find any ground for iavoking any extraordinary jurisdiction. Consequenfly, ttae petition is dism.issed at the stage of admission. 6. I.A. No. 01/2008 is stands disposed of. Sd/- T.P. Sharma Judge