IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Misc. No. M-4199 of 2009 Date of decision : October 09, 2009 Ankur Aggarwal ....Petitioner versus Durga Rani Arora ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arun Bansal, Advocate, for the petitioner Ms. Monisha Lamba, Advocate for the respondent L.N. Mittal, J. (Oral) Criminal Misc. No. 51206 of 2009 The application is allowed and documents are taken on record. Criminal Misc. No. M-4199 of 2009 Ankur Aggarwal has filed this petition under section 482 of the Code of Criminal Procedure ( in short, Cr.P.C.) for quashing summoning order dated 15.1.2008 (Annexure P/1) passed by learned Judicial Magistrate Ist Class, Faridabad, whereby in criminal complaint instituted by respondent Durga Rani Arora, petitioner has been ordered to be summoned under section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). According to complaint allegations, cheque for Rs 10 lacs issued by the petitioner in favour of respondent was dishonoured on account Criminal Misc. No. M-4199 of 2009 -2- of insufficient funds. The respondent-complainant sent demand notice dated 28.12.2007 by registered post to the petitioner. Since the demand was not met within the stipulated period of 15 days, the respondent instituted complaint under section 138 of the Act, wherein the impugned summoning order has been passed. Learned counsel for the petitioner contended that it was Sunday on 30.12.2007 and therefore, even if the notice is deemed to have been received by the petitioner on 31.12.2007, cognizance of the complaint vide impugned summoning order dated 15.1.2008 was taken before expiry of mandatory period of 15 days as required under section 138(c) of the Act and therefore, the impugned summoning order is illegal. Reliance in support of this contention has been placed on a judgment of Allahabad High Court in the case of Smt. Hem Lata Gupta v. State of U.P. And another, 2002 Criminal Law Journal, 1522. It was held therein that bar of expiry of 15 days from date of service of notice is for taking cognizance and not for filing complaint. In other words, complaint filed before expiry of 15 days from the date of receipt of notice is competent but cognizance cannot be taken before expiry of the requisite period of 15 days. In the instant case, however, the petitioner in the petition has nowhere alleged as to when he received the demand notice. This fact was in the special knowledge of the petitioner but he has not even made an averment in the petition that he received notice on 31.12.2007. In view thereof, the aforesaid contention cannot be accepted. In addition thereto, the aforesaid contention is hypertechnical. As noticed hereinabove, the complaint itself was competent and the summoning order could be passed Criminal Misc. No. M-4199 of 2009 -3- after expiry of 15 days. Consequently, even if the notice was received on 31.12.2007 by the petitioner, summoning order could have been passed any day after 15.1.2008. Setting aside the impugned summoning order would be exercise in futility because learned Magistrate would be competent to again pass the summoning order. In exercise of inherent jurisdiction under section 482 Cr.P.C., this Court would not indulge in a futile exercise. In view of the aforesaid, the instant petition is dismissed. However, nothing observed hereinabove shall have any bearing on the merits of the case and the petitioner shall be at liberty to raise all his pleas before the trial court. ( L.N. Mittal ) October 09, 2009 Judge 'dalbir'