Court No. - 44
Case :- APPLICATION U/S 482 No. - 42757 of 2017 Applicant :- Rajnish Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Balbeer Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Balbeer Singh, learned counsel for the applicant and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 27th November, 2017 passed by the Additional Chief Judicial Magistrate, Court No.3, Agra in Complaint Case No. 641 of 2017 (Naresh vs. Rajnish Kumar), under Section 138 N.I. Act, Police Station Tajganj, District Agra as well as the entire proceedings of the above mentioned complaint case.
From the record, it appears that the applicant issued a disputed cheques dated 6th October, 2016 to the complainant-opposite party no.2. Upon presentation in the bank account of the complainant-opposite party no.2, the said cheques were not encashed and were consequently returned vide memo of return dated 14th March, 2017. Consequently, as per the mandate of Section 138 (b) N.I. Act a notice dated 18th March, 2017 was sent by the complainant-opposite party no.2 to the applicant calling upon to pay the amount payable under the disputed cheques. However, before expiry of clear 15 days from the date of receipt of the notice, which in this case is 20th March, 2017, a complaint was filed on 30th March, 2017, which is prior to the expiry of clear 15 days from the date of receipt of the notice.
The Apex Court in the case of Yogendra Pratap Singh vs. Savitri Pandey, reported in 2014 (10) SCC 713, has categorically held that where the complaint is filed before the expiry of a period of 15 days, such complaint is premature complaint and cannot be proceeded with.
Having considered the submissions advanced by learned counsel for the applicants the learned A.G.A. for the State and upon consideration of the material brought on record, matter requires consideration.
Learned A.G.A. for the State has accepted notice on behalf of the opposite party no.1.
Issue notice to opposite party No.2, calling upon him to file counter affidavit.
Both the respondents may file their respective counter affidavits on or before the date fixed in the notice. List on the date fixed in the notice.
In view of the facts as noted herein above, it is provided that further proceedings proceedings of above mentioned complaint case, shall remain stayed till the next date of listing. However, in case the complainant-opposite party no.2 desires, he may file a fresh complaint before the court concerned and the pendency of the present application shall not be taken as an impediment in the filing of the second complaint.
(Rajeev Misra, J.) Order Date :- 14.9.2018 Sushil/-