IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No. 924/2011. In CRIMINAL MISCELLANEOUS APPLICATION No. 47/2008 (Under Section 482 of the CrPC) Neeraj Kumar …….Applicant Versus State of Uttarakhand & Another ……Respondents Mr. Manish Arora, Advocate, for the applicant. Mr. S.K. Shandilya, Advocate, for the complainant/respondent no. 2. 13th December, 2011 Hon’ble Servesh Kumar Gupta, J. The petition was dismissed in non-prosecution on 30.11.2011. Hence, the restoration application no. 924/2011 has been moved seeking recall of the said order. The application has been moved in time, almost within a week. Since it has not been opposed by learned Counsel for the opposite party, and also considering the reasons mentioned in the restoration application, the same is allowed. The order dated 30.11.2011 is recalled. The petition is restored to its original number. 2. The matter was heard finally with consent of both the parties. Also perused the papers on record. 3. By way of this Criminal Miscellaneous Application, the applicant has sought to quash the Complaint Case No. 3189/2007, Naresh Tyagi v. Neeraj Kumar, as well as the order of cognizance dated 22.12.2007 passed therein by the Judicial Magistrate, Roorkee asking the applicant Neeraj Kumar to stand trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’). 2 4. Having heard the learned Counsel for the accused applicant and learned Counsel for the complainant/respondent no. 2 and after going through the materials available on record, it transpires that a cheque bearing no. “002259”, dated 19.7.2007, drawn at Phlauda branch of the Punjab National Bank, District Muzzafarnagar was issued by the applicant Neeraj Kumar to Naresh Tyagi for payment of rupees three lakh and fifty thousand, which Neeraj Kumar had earlier taken as debt from Naresh Tyagi. When the said cheque was presented for encashment, the same was dishonoured by the bank due to insufficient fund in the account of the drawer of the cheque. Hence, the bank returned the said cheque unpaid to Naresh Tyagi on 11.10.2007. Thereafter Naresh Tyagi sent a legal notice dated 5.11.2007 through his Advocate, as envisaged under Section 138(b) of the Act, to the applicant demanding payment of the cheque amount. But that notice returned unserved. So, the complainant filed the impugned complaint on 11.12.2007 before the court of Judicial Magistrate, Roorkee. 5. The learned Magistrate after considering the statement of the complainant, made by him under Section 200 CrPC, and the papers filed in support of his complaint, took cognizance of the offence vide the impugned order dated 22.12.2007 and summoned the accused applicant to stand trial for the offence punishable under Section 138 of the Act. 6. Learned Counsel for applicant argued that contents of the complaint nowhere disclose as to when the cheque, in question, was presented before the bank for encashment. His second contention is that the notice sent under Section 138(b) of the Act was never served upon the applicant. Hence, in the helm of above affairs, the complaint 3 was not maintainable before the court below, and as such, the learned Magistrate has erred in passing the impugned order of cognizance. 7. The arguments advanced by the learned Counsel for the applicant are totally misconceived and untenable in the eyes of law for the reason that cheque, in question, bore the date 19.7.2007, and as per the banking rules and regulations, it can be presented for encashment within six months from the said date. The memo of return of the said cheque unpaid reveals that the cheque was dishonoured on account of “insufficient funds” in the account of the drawer of the said cheuqe, and not on account of expiry of the validity period of the said cheque. Therefore, non-mentioning of the particular date of presentation of said cheque in the impugned complaint has no relevancy in the instant controversy. As such, argument advanced by the learned Counsel for the applicant in this regard has no leg to stand and the same is rejected. 8. As regards the second argument put forth by learned Counsel for the applicant that the complaint has been filed without service of notice on the applicant, so it was not maintainable. In this regard, it can be observed that the report of the postal department, annexed as Annexure 1 to the counter affidavit, reveals that the postman concerned tried to serve the legal notice on the applicant at his residence as many as six times. But every time, the applicant Neeraj Kumar evaded the service of notice on the pretext of his non-availability at his residence. Ultimately, the postal department returned the post containing the said notice back to the complainant mentioning all the dates of attempt on which the postman tried to serve the said notice on the applicant. In these circumstances, the reflection can easily 4 be discerned that the notice was deliberately not received by the applicant and, therefore, the same shall be deemed to have been served on the applicant on 14.11.2007, the date on which the postman attempted last to serve the said notice at the residence of the applicant. 9. Besides, 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 of the summons issued by the court below, as has also been observed by the Full Bench of the Hon’ble Apex Court in its judgment 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 do so, then the accused cannot be permitted to contend that there was no proper service of notice. 10. In the instant case, the applicant/drawer after receiving the summons from the court below, instead of making payment of the cheque amount, preferred the petition before this Court. Hence, in view of the abovenarrated facts and circumstances of the case and the legal proposition (supra), the impugned complaint was neither premature nor it was non-maintainable. The learned 5 Magistrate has rightly passed the impugned order of cognizance, which warrants no interference by this Court. 11. In the result, the petition being meritless is hereby dismissed. Needless to mention, the stay order dated 11.1.2008 has already been vacated by this Court on 21.11.2011. 12. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 13.12.2011 Prabodh