IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Application No. 57 of 2005 Pahal Singh Rathi S/o Sri Samay Singh Rathi R/o Haridwar Road Post Office Laksar District Haridwar ... Applicant Vs 1. State of Uttaranchal through Secretary in the Department of Home Affairs Dehradun 2. Rakesh Kumar S/o Sri Krishna Kumar Proprietor M/s J.K. Furniture’s R/o Haridwar Road, Laksar District Haridwar ... Respondents Sri T.A. Khan, learned counsel for the petitioner Learned A.G.A. for the State/respondent No. 1 Hon’ble B.C. Kandpal, J. By way of this petition under Section 482 Cr.P.C., the petitioner who has been summoned by the trial court to face the trial under Section 138 Negotiable Instrument Act has challenged the proceedings of Criminal Case No. 379 of 2004, pending in the court of Civil Judge (J.D.)/Judicial Magistrate, Laksar, District Haridwar. 2. Brief facts of the case re that a complaint was filed by the respondent No. 2 against the petitioner under Section 138 Negotiable Instrument Act which was dismissed in his absence on 27.01.2004. The complainant further filed second complaint on 17.02.2004 under Section 138 Negotiable Instrument Act. The trial court vide order dated 26.04.2004 dismissed that complaint. The complainant, therefore, filed the revision and the learned Sessions Judge allowed the revision and directed the Magistrate to passed the order in the light of the observation made by the revisional court vide order dated 25.10.2004. Thereafter, the learned Magistrate considered the entire material pleased before her and after hearing learned counsel for the parties took the cognizance against the petitioner under Section 138 Negotiable Instrument Act vide order dated 20.12.2004. 3. Feeling aggrieved by the aforesaid order of the Magistrate, the petitioner has approached this Court by way of this petition under Section 482 Cr.P.C. 4. Heard Sri T.A. Khan, learned counsel for the petitioner, learned A.G.A. for the State/respondent No. 1 and perused the record. 5. Sri T.A. Khan, learned counsel for the petitioner has submitted that once the first complaint was dismissed vide order dated 27.01.2004 then thereafter without giving any satisfactory explanation by the complainant in the second complaint no cognizance could have been taken by the court against the petitioner under Section 138 Negotiable Instrument Act. He has further submitted that in the second complaint was specifically barred by the provision of Section 142 of the Negotiable Instruments Act. He has also submitted that in the absence of any application by the complainant giving reason for filing the second complaint with a delay of 20 days, the Magistrate did not have any power to take the cognizance in the matter. 6. Having considered the material available before me and after hearing learned counsel for the petitioner, I am of the view that the submissions raised by learned counsel for the petitioner are devoid of any force. The second complaint which is contained as Annexure – 3 to the petition itself reveals that in paragraph No. 10 of the same, the complainant has stated the reason for filing the second appeal. It has been specifically stated therein that the first complaint was dismissed in his absence on 27.01.2004, therefore, the reason arose with the complainant to file the second appeal. 7. The revisional court has also set aside the previous order passed by the Magistrate by which the complaint was dismissed on the reason that the court in view of the provision envisaged under Section 142 Negotiable Instrument Act could have taken the cognizance if the complainant satisfied, the court for filing the complaint beyond time prescribed under Section 142 of the Negotiable Instrument Act. The Magistrate in the subsequent order dated 20.12.2004 has also dealt with the point involved in the matter with regard to the delay in filing the complaint and has given a reason that second complaint was maintainable in the eye of law. 8. I do not find any abuse of process of Court or any infirmity or illegality in the order passed by the court below at this stage. The petition lacks merit and is liable to be dismissed. 9. Accordingly, the petition is dismissed in-limine. (B.C. Kandpal, J.) 02.01.2008 ASWAL