IMPORTANT POINT
Courier service of legal notice under Section 138 of N.I. Act may be mode of serving notice.

JUDGMENT

Mukhtar Ahmad, J.—This application under Section 482 Cr.P.C. has been moved by the applicants with a prayer to quash the summoning order dated 11.05.2009 passed in complaint case no. 3893 of 2008 (Pramod Saxena Vs Kuber Sharma) under Section 138 N.I Act Police Station Civil Lines District Rampur. Further proceedings of the case are also prayed to be stayed.

2. Facts giving rise to this application in a nut shell are that a complaint bearing no. 3891 of 2008 under Section 138 and 142 N.I. Act was filed by opposite party no. 2 Pramod Saxena, alleging that applicant Kuber Sharma agreed to sell his house to the complaint for a sale consideration of Rs. 7,50,000/- out of which Rs. 7,00,000/- were paid as earnest money but later on it was found that property was mortgaged with the State Bank of India so money was returned by Kuber Sharma through a cheque bearing No. 523671 for Rs. 7,00,000/- lakh in favour of complaint on 05.10.2007. That cheque was deposited by Pramod Saxena for encashment in bank on 26.02.2008 but the same was dishonored on account of insufficient fund and information to this effect was given to him on 28.02.2008. Thereafter, a legal notice was sent by Pramod Saxena through his Advocate on 13.03.2008 by registered post with acknowledgment, (UPC) and through courier as well. It was further submitted that Kuber Sharma tried to avoid the service of notice sent through post but ultimately the notice sent through courier was served personally upon him on 25.04.2008. The proof of delivery of courier was provided to the complaint on 26.04.2008, but in compliance of the notice no payment was made. Thereafter a written complaint was filed in the court on 31.05.2008. Complainant examined herself under Section 200 Cr.P.C and deposited original cheque, postal receipt, bank memo UPC receipt copy of notice etc.

3. Learned C.J.M Rampur after considering the evidence available on record, came to the conclusion that there was prima facie evidence for proceedings under Section 138 of N.I Act and summoned accused applicant Kuber Sharma for facing trial vide order dated 11.05.2009. Assailing that order the present application has been preferred.

4. Heard Mr. Abhinav Prasad learned counsel for the applicant, Ms. Pooja Srivastava learned counsel for opposite party no. 2 learned A.G.A for State and considered the record available before the Court.

5. Learned counsel for the applicant submitted that no offence is made out against him as it has not been established that notice was served upon applicant. It is vehemently argued that as per complaint, notice dated 13.03.2008 was sent through registered post, (UPC) as well as through courier service but it is said that notice through courier service was served upon applicant on 25.04.2008 which prima facie seems to be unacceptable as for such a long period i.e., from 13.03.2008 to 25.04.2008 the notice was kept by courier service provider. In ordinary course it should have been served within 2 or 3 days. It is also stated that service of notice through courier service is not permissible and in that event if the notice dated 13.03.2008 is taken into consideration then in ordinary course it ought to have been served hardly within a week. If the service is presumed sufficient on 20.03.2008 then cause of action shall arose after expiry of 15 days i.e., 04.04.2008 and in this situation the complaint was to be filed within one month thereafter i.e., upto 03.05.2008, but the present complaint has been filed on 31.05.2008 which is barred by limitation but the learned Trial Court has not considered this aspect in correct perspective and has passed the summoning order in a very slip shod manner and thus arrived at a wrong conclusion, which is liable to be quashed by this Court. Reliance has been placed on Deepak Kumar vs. State of U.P. and other 2006 (8) ADJ 427.

6. Learned A.G.A and Ms. Pooja Srivastava learned counsel for opposite party no. 2 have denied these arguments. It is submitted tha