Criminal Revision No. 302 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No. 302 of 2001 Date of Decision: 10.07.2008 Shiv Dutt Malik son of Jivan Dass Malik, resident of H. No.3, Maha Lakshmi Garden, Opp. Railway Station, Gurgaon. ....Petitioner. Versus Shri Darshan Kalra son of Sh.B.L.Kalra, resident of 10680, Nabbi Khareem, New Delhi. ...Respondent. CORAM : Hon'ble Mr. Justice Rajesh Bindal. Present:- None for the petitioner. Mr. Sharmila Sharma, Advocate, for the respondent. **** RAJESH BINDAL J. The challenge in the present petition is to the order dated November 4, 2000 passed by learned Additional Sessions Judge, Gurgaon in revision filed by the respondent against the order dated January 17, 2000 passed by learned Chief Judicial Magistrate, Gurgaon, issuing notice of accusation to the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short `the Act'). This case has a checkered history. Even the present petition is pending in this Court in kacha peshi since December 2000. Briefly, the facts as are evident from the orders passed by the Courts below are that the respondent borrowed a sum of Rs.50,000/- from Criminal Revision No. 302 of 2001 2 the petitioner. For payment thereof certain cheques were issued which on deposit were dis-honoured on the ground that funds in the account of the respondent were insufficient and returned on August 4, 1993. On account of dis-honour of cheques, the petitioner issued notice to the respondent on September 4, 1993. On failure of the respondent to comply with the terms of notice, a complaint was filed in Court under Section 138 of the Act and Section 420 IPC. The respondent was summoned vide order dated September 16, 1994. However, on account of non-appearance of the petitioner/complainant, the complaint was dismissed for non prosecution on April 2, 1998. Even the application filed for restoration thereof was also dismissed on August 27, 1998. Aggrieved against that order, the petitioner approached learned Sessions Judge, who vide order dated September 16, 1999 set aside the order dated April 2, 1998 passed by the learned Chief Judicial Magistrate, dismissing the complaint in default and restored the same to its original number and directed the Court concerned to proceed with the complaint in accordance with law. Thereafter, the accused was issued notice of accusation under Section 138 of the Act vide order dated January 17, 2000 which was challenged by the respondent before the learned Additional Sessions Judge, in the revision. Accepting the contention raised by the respondent, the order passed by the learned Chief Judicial Magistrate issuing notice of accusation under Section 138 of the Act was set aside. It is against this order that the petitioner approached this Court. At the time of issuance of notice of motion on October 4, 2001, it was noticed by the Court that the order dated January 17, 2000 was not on record. It was observed that the same be placed on record. Perusal Criminal Revision No. 302 of 2001 3 of the paper book shows that the same has not been placed on record till date. It is only the revisional order, which is on record and in addition to this the order passed by learned Sessions Judge, in the revision filed by the petitioner earlier where the order dismissing the complaint in default was set aside has been placed on record. On perusal of the impugned order, this Court does not find any error of jurisdiction in the power exercised by the learned Additional Sessions Judge. A perusal of facts on record shows that after the complaint was restored to its original number, notice of accusation was issued to the respondent only under Section 138 of the Act and it was the respondent/accused only who was aggrieved against that order. In revision filed by the respondent against the order dated January 17,2000 issuing notice of accusation under Section 138 of the Act, the learned Additional Sessions Judge, found that the petitioner having received back the cheques un-cleared on August 4, 1993, on account of insufficiency of funds in the account of the respondent, issued legal notice to the respondent only on September 4, 1993. The learned Courts below further found that the notice having not been issued within the period prescribed under the Act, i.e. within 15 days of the receipt of the information from the bank regarding the return of the cheques un-paid, the Court could not take cognizance of the offence under the Act. In addition to this even it was found that the complaint filed by the petitioner was also highly belated. The same having been filed on November 17, 1993 whereas the legal notice was issued on September 4, 1993. Once it was factually found that the complaint filed by the petitioner under Section 138 of the Act was belated and there was no compliance of the provisions of the Act with regard to limitation for Criminal Revision No. 302 of 2001 4 issuance of notice and filing of complaint, in my opinion, no illegality has been committed by the Court below in accepting the revision filed by the respondent. Even the ground raised by the petitioner in the grounds of revision regarding the summoning of respondent under section 420 IPC also does not have any legs to stand. Firstly, after the complaint was restored by the learned Sessions Judge, the notice of accusation was issued to the respondent only under Section 138 of the Act. Secondly, even the language of the summoning order as is found to be extracted in the order dated September 16, 1999, of the learned Sessions Judge (Annexure P-1) shows that the summoning was on account of dis-honour of cheques for insufficiency of funds. For the reasons mentioned above, I do not find any merit in the present petition. The same is dismissed. (RAJESH BINDAL) July 10, 2008. JUDGE Reema