IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 162/2005 M/s Keshi Developers through its Partner Kishore Kumar Garg and others ..Petitioners. Versus Second Additional Civil Judge (J.D.)/Judicial Magistrate and others ..Respondents. Dated: April 20, 2010 Hon’ble B.C. Kandpal, J. (Oral) This petition, U/S 482 Cr.P.C. has been filed for setting aside the order dated 29-5-2005, passed by 2nd Judicial Magistrate Dehradun in Complaint Case No. 14 of 2004, Dinesh Jai Vs. M/s Keshi Developers and others, whereby the petitioners have been summoned to face trial U/S 138 of Negotiable Instrument Act. They further prayed for quashing of the proceeding of the aforesaid Complaint Case. The facts giving rise to this petition are that the complainant/respondent No.3, filed a complaint case against the petitioners with the allegations that he paid Rs. 40,00,000/- to the petitioners/accused for purchase of land through cheques. The accused encashed the cheques issued by him but did not register the land in his name and promised to return the money to him. The accused returned him Rs. 15,00,000/- and for remaining amount of Rs. 25,00,000/- issued cheques No. 366073 dated 10-3-2004, for S. 5,00,000/-, No. 366074 dated 11-3-2004, for Rs. 5,00,000/-, No. 366075 dated 12.3.2004, for Rs. 5,00,000/- and No. 366076 dated 13.3.2004, for Rs. 10,00,000/- of the Bank of Maharashtra Dehradun. The aforesaid cheques were presented before the bank and the same were dishonoured. Thereupon the complainant sent notices to the accused/petitioners through registered post but the same were returned as unclaimed. Hence the complainant filed complaint against the accused/petitioners. The learned Magistrate recorded the statement of complainant U/S 200 Cr.P.C. and after perusing the entire material available on record, vide impugned order dated 29-5-2005 summoned the accused/petitioners to face trial under Section 138 of Negotiable Instrument Act. Feeling aggrieved by the aforesaid summoning order the petitioners have filed this petition for setting aside the summoning order as well as for quashing the entire proceeding of the complaint case, pending against them. I have heard Sri Arvind Vashist, learned counsel for the petitioners, learned A.G.A. for the State and Ms. Anjali Noliyal, Advocate for complainant/respondent No.3 and perused the record. Learned counsel for the petitioners has firstly argued that on the basis of the complaint itself it is clear that the registered notices sent to the petitioners were returned back unclaimed, therefore, it cannot be said that the notices had ever been served upon the petitioners, hence under these circumstances the complaint is barred by the provisions of the Negotiable Instrument Act. The learned counsel for the respondent has raised the rival contention stating therein that when the notices were sent through registered post and acknowledgement due to the correct address it must be presumed that the service has been made effective and the petitioners can not get any benefit of the submission raised by him before this court. The learned counsel for the petitioners in support of his submission has cited 2008(16) Scal 317, M/s Harman Electromics (P.) Ltd. & Another Vs. National Panasonic India Ltd. I have gone through the judgment cited by the learned counsel for the petitioners and I am of the view that the decision cited by him does not extend any help to the petitioners, in view of the facts and circumstances of the present case. My attention has been invited towards certain other decisions of the Hon’ble Apex Court K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, reported in 1999 SCC (Cri) 1284, as well as V. Raja Kumari vs. P. Subbarama Naidu, reported in 2005 SCC (Cri) 393 and Indo Automobiles vs. Jai Durga Engerprises and others, reported in (2009)1 Supreme Court Cases (Cri) 661, in which it has been held that where sender has sent notice on correct address written on it, then it can be deemed to have been served on sendee unless he proves that it was not really served and that he was not responsible for the non-service. In the instant case the service of notice to drawer is such a question which can be decided during the trial and the complaint cannot be dismissed at the threshold on ground that there was no proper service of notice. It is well settled law that once notice has been sent by registered post with acknowledgement due, on correct address then it must be presumed that the service has been made effective. Therefore, on the basis of the material available on record, I do not find any flagrant injustice caused to the petitioners at this stage. The submission raised by the learned counsel for the petitioners is devoid of any force. Learned counsel for the petitioners has further submitted that as per the allegations made in the complaint, the cheques contain the signatures of respondent No.2, in the capacity of the authorized representative of respondent No.1. It has although been mentioned in the complaint that rest of the respondents are partners of the firm, but nowhere it has been stated in the complaint that they are participating actively in the day today affairs of the firm, therefore, merely on the ground that the other respondents being sleeping partners could be dragged before the court for their unnecessary harassment. On the assessment of the evidence, I think that this argument carries force. The complainant nowhere stated in the complaint that rest of respondents 3 to 6 are active partners and they deal with the daily affairs of the firm actively. Merely the respondents 3 to 6 being sleeping partners the proceeding U/S 138 of the Negotiable Instrument Act can not be initiated against them. The complaint itself shows that respondent No.2 signed on the cheques in the capacity of the authorized representative of respondent No.1, hence respondent No.2 is the person who is participating actively in the day-today transactions of the firm. I am of the view that the criminal proceeding against the respondent/petitioner Nos. 3 to 6 would amount unnecessary harassment to them and I do not find any justification to proceed further against them for the offence U/S 138 of the Negotiable insttument Act. On the basis of the assessment of evidence, I come to the conclusion that the proceeding U/S 138 Negotiable Instrument Act against respondent/petitioner Nos. 3 to 6 should be quashed. However, the proceeding against respondent/petitioner Nos. 1 to 2 M/s Keshi Developers through Kishore Kumar Garg and Kishore Kumar Garg shall be continued. For the discussion made above, the petition is liable to be partly allowed. Accordingly, the petition is partly allowed. The proceeding of Complaint Case No. 14/2004, Dinesh Jain Vs. M/s Keshi Developers and others U/S 138 Negotiable Instrument Act, pending before 2nd Addl. Civil Judge (J.D)/ Judicial Magistrate, Dehradun, against accused/petitioner Nos. 3 to 6, Smt. Shashi Garg, Ashok Kumar Garg, Smt. Madhuri Garg and Km. Sakshi Garg, is hereby quashed. However, the petition filed on behalf of petitioner No.1 M/s Deshi Developers through its partner Kishore Kumar Garg and petitioner No.2, Kishore Kumar Garg, is dismissed. The proceeding of the complaint case shall continue against them. The interim stay order, if any, stands vacated. (B.C. Kandpal, J.) ISB