Court No. - 83
Case :- APPLICATION U/S 482 No. - 10434 of 2021 Applicant :- Nathiram Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Pathak,Harshit Pathak Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Anurag Pathak, learned counsel for applicant and learned A.G.A. for State.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed challenging order dated 18.10.2018 passed by Additional Judge, Saharanpur/Additional Chief Judicial Magistrate-IV, Saharanpur in Complaint Case No.3612 of 2016, (Ram Rishi Pal Vs. Nathi Ram), under Section- 138 N.I. Act, whereby application (paper no. 10kha) filed by accused-applicant has been rejected as well as order dated 24.02.2021 passed by Additional District and Sessions Judge, Court No.11, Saharanpur in Criminal Revision No.338 of 2018, (Nathi Ram Vs. State of U.P. and Another), whereby aforesaid criminal revision arising out of order dated 18.10.2018 has been dismissed.
4. Record shows that applicant issued cheque No.506971 dated 21.05.2008 drawn on Bank of Baroda and valued at Rs.12 lacs in favour of complainant/opposite party-2. However, upon presentation of aforesaid cheque by complainant/opposite party-
2 in his bank, same was dishonoured on account of insufficiency of funds. Consequently, complainant/opposite party-2 sent a legal notice to applicant asking him to pay the amount payable under the disputed cheque. However, applicant failed to honour the legal notice. Consequently, complainant/opposite party-2 filed above-mentioned complaint case.
5. Court concerned proceeded with the complaint and ultimately vide order dated 15.04.2014 summoned accused- applicant. Applicant appeared before court concerned and filed an application dated 18.10.2018 (paper no.10B) alleging therein that since the date of dishonour of cheque and the date of service of notice upon applicant has not been mentioned in the complaint, therefore, the complaint as filed by complainant/opposite party-2 is not maintainable and is therefore liable to be rejected.
6. Magistrate considered the application filed by accused/applicant and rejected the same by order dated 18.10.2018. Magistrate held that since summons have already been issued against accused-applicant and court has no power to recall the summons, application filed by accused cannot be entertained. Consequently, application filed by accused- applicant is misconceived. Accordingly, aforesaid application was rejected.
7. Feeling aggrieved by above order dated 18.10.2018 passed by Additional Judge, Saharanpur/Additional Chief Judicial Magistrate-IV, Saharanpur, applicant preferred Criminal Revision No.338 of 2018, (Nathi Ram Vs. State of U.P. and Another) before Additional District and Sessions Judge, Court No.11, Saharanpur, which was dismissed by order dated 24.02.2021.
8. Revisional court concurred with the view taken by concerned Magistrate. However, revisional court also held that since summons have been issued against applicant, then court has no jurisdiction to recall the summons and examine the veracity of allegations made by means of application (paper no.10B), which can be decided only at the time of trial.
9. Learned counsel for applicant contends that objection raised by applicant before court below went to the root of the matter and in case the findings are returned in favour of applicant on the objections raised by applicant, then in that eventuality applicant shall be saved from facing the trial.
10. Per contra, learned A.G.A. has opposed this application. He submits that impugned orders passed by court below are perfectly just and legal and, therefore, not liable to be interfered with. Admittedly, proceedings under Section 138 N.I. Act are pending against applicant. Proceedings of a complaint case under Section 138 N.I. Act have to be tried as a summary trial case. Once summons have been issued then criminal courts cannot recall the same by virtue of the provisions contained in Section 362 Cr.P.C. Thus, only course open for applicant is to appear before court below and contest the complaint so filed by complainant/opposite party-2 on merits.
11. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, the Court finds that submissions urged by learned counsel for applicant appears to be attractive at the first flush but on deeper scrutiny same is devoid of merit. Apart from the reasonings recorded by courts below which this Court does not finds to be illegal, perverse or erroneous, submissions urged by learned A.G.A. also have some substance. Apart from above, from perusal of affidavit filed in support of present application, it is apparent that no specific allegation has been made with regard to the fact that the complaint filed by applicant is not accompanied by the return memo issued by concerned bank. Similarly, court further finds that applicant has not disputed the address on which the legal notice was sent by opposite party-2 to the applicant. At this stage, reference be made to Section 27 of the General Clauses Act, 1897, wherein it is provided that if notice has been sent on the last known address of addressee and the notice has not been received back, it shall be deemed to have been served. It is thus apparent that objection filed by applicant before Magistrate was only to delay the trial of aforesaid proceedings.
12. In view of above, this Court does not find any good ground to entertain this application
13. The application fails and is liable to be dismissed.
14. It is accordingly dismissed.
Order Date :- 27.9.2021 Saif