IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application (MCRC) No. 453 of 2010 Delay Condoantion Application No. 594 of 2010 In Criminal Misc. Application (C-482) No. 271 of 2008 Raj Kumar Singh S/o Parmeshwar Singh R/o 1/32 Durga Nagar Bereilly, (U.P.) ………….. Applicant/Petitioner Versus 1. State of Uttarakhand 2. M/s New Sagar Transport Co. Through its proprietor Shiv Naresh Pandey S/o Bhawani Shankar Pandey R/o New Sagar Transport, Gurudwara Building Lalkuan, District Nainital …………Opposite parties. Shri Praveen Kumar, Advocate present for the petitioner. Shri B.S. Parihar, Brief Holder, present for the State. Shri Z.U. Siddiquie, Advocate, present for respondent No. 2 / complainant. Hon’ble Prafulla C. Pant, J. This is delay condonation application no. 594 of 2010 for condonation of delay in filing the restoration application no. 453 of 2010 for restoration of the criminal miscellaneous application no. 271 of 2008, which was dismissed for non prosecution on 19.11.2009. The delay condonation application is supported by affidavit of Rajkumar Singh, petitioner. The delay condonation application 594 of 2010 is allowed. Delay is condoned. 2. Heard on restoration application MCRC no. 453 of 2010, for restoration of the petition moved under section 482 of Cr.P.C., which was dismissed for non prosecution on 19.11.2009. The application is supported by affidavit of the petitioner in which the absence on the date fixed has sufficiently been explained. 3. The restoration application MCRC no. 453 of 2010, is allowed on the condition that the parties shall be heard today on the main petition sought to be restored (Reliance is placed on the principle laid down in Madhumilan Syntax ltd. vs. Union of India, (2007) AIR SCW page 1971). Accordingly, the Criminal Miscellaneous Application (C482) No. 271 of 2008, is restored. 4. Heard on the restored petition moved under section 482 of Cr.P.C. 5. Learned counsel for the petitioner drew the attention of this Court to Annexure-2B to the petition which is the question-answer relating to whether the petitioner had filed copy of the notice allegedly served on the accused/petitioner or not, with the complaint before the trial court, and the answer is negative. On that ground, it is pleaded that the trial court has erred in law in summoning the accused without getting satisfied as to service of statutory notice on the petitioner/accused. 6. The impugned criminal case is a complaint case filed under section 138 of Negotiable Instruments Act, 1881. In its para 3, it is pleaded by the complainant that the notice was got sent by the registered post to the petitioner which was duly served on him. The Magistrate in the summoning order has been mentioned that not only the complainant in his examination under section 200 of Cr.P.C., stated that the notice was served on the petitioner/accused, but also filed register AD (Acknowledgment Due). In the circumstances, it cannot be said that not filing copy of the notice with the criminal complaint vitiates the trial. 7. Learned counsel for the petitioner referred to Annexure-2C, which is copy of letter dated 03.07.2004, sent on behalf of the petitioner/accused to the complainant/respondent no. 2 that in the registered letter there were only a white paper sheet inside the envelope. Now, this is disputed question of fact as to whether the complainant got sent notice or the blank paper, which cannot be examined by this Court in its jurisdiction under section 482 of Cr.P.C., with half baked evidence before it. It is for the trial court to see after recording evidence of the parties as to whether the statutory notice was served on the petitioner or not. 8. In the above circumstances, without expressing any opinion as to final merits of the case, the petition under section 482 of Cr.P.C., is dismissed with the observation that the petitioner may raise the aforesaid pleas before the trial court. (Prafulla C. Pant, J.) Dt. 18.06.2010 parul