IMPORTANT POINT
Dishonour of cheque – Any complaint under Section 138 of N.I. Act should have been filed strictly in accordance with mechanism so given under Section 138 of N.I. Act.

JUDGMENT

Rajesh Singh Chauhan, J.—Heard Sri Shishir Pradhan, learned counsel for the petitioner and Sri Bishwa Nath Nishad, learned Additional Government Advocate for the State.

2. In view of the proposed order, the notice to opposite party No.2 is hereby dispensed with.

3. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed for the following reliefs:—

(i) Wherefore, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to allow this petition under Section 482 Cr.P.C. and quash the impugned summoning order dated 28.03.2023 and N.B.W. order dated 15.02.2024 passed by the court of learned Third Additional Civil Judge (Junior Division)/Judicial Magistrate, Raebareli in Complaint Case No.4645 of 2023 (Sarika Shukla vs. Pradeep Agnihotri), under Section 138 of Negotiable Instructions Act, Police Station-Kotwali, District-Raebareli, as contained in Annexure Nos.1 and 2 respectively to the affidavit.

(ii) Further, it is most humbly prayed from this Hon’ble Court that to stay the proceedings as pending against the present applicant in the learned court of Third Additional Civil Judge (Junior Division)/Judicial Magistrate, Raebareli, during the pendency of present petition as under Section 482 Cr.P.C.”

4. Sri Pradhan has assailed the aforesaid orders and the proceedings on the ground that the complaint in question has been filed in violation of Section 138 (c) of Negotiable Instruments Act (in short “N.I. Act”) inasmuch as the private opposite party has preferred a legal notice on 06.01.2023 but the complaint has been filed on 10.02.2023, whereas after giving the legal notice and expiry of thirty days period the complainant will have to wait for fifteen days to get the payment which has been demanded by him and if such payment is not received within the aforesaid period, the complaint under Section 138 of N.I. Act may be filed. The aforesaid period would be expiring on 21.02.2023. Sri Pradhan has taken second ground by submitting that the legal notice has not been preferred on the correct address of the petitioner as the petitioner is a resident of Bhimganj, Police Station-Dalmau, District-Raebareli but on the tracking report it has been mentioned that the aforesaid legal notice has been delivered at Banapar BO though the petitioner is not residing at that place.

5. Sri Pradhan has therefore stated that since the legal notice has not been served upon the petitioner, hence, he could not contact the complainant. Not only the above, when the complainant has filed the complaint before the court concerned. Further, the notice must have been issued to the petitioner on such address where he is residing, however, the notice has been issued at the address where the petitioner is not residing, resultant thereof, the notice could not be served upon the petitioner and he could not participate in the proceedings and the summons, bailable warrant and non-bailable warrant have been issued against him. However, when the proclamation under Section 82 Cr.P.C. has been issued against the petitioner, then the petitioner came to know about the aforesaid proceedings.

6. Sri Pradhan has also stated that before issuing the proclamation under Section 82 Cr.P.C. the court concerned must ensure on the fact as to whether the notice, summon, bailable warrant and non-bailable warrant are served upon the petitioner and as to whether he is deliberately avoiding those process, inasmuch as this is a trite law that the proclamation under Sections 82/83 Cr.P.C. should not be issued in a casual and cursory manner. As per Sri Pradhan, the impugned order dated 15.02.2024 does not reveal that the aforesaid satisfaction has been indicated in the impugned order itself. Therefore, as per Sri Pradhan, the impugned order dated 15.02.2024 issued under Section 82 Cr.P.C. is per se illegal and against the settled proposition of law.

7. Sri Pradhan has further submitted that the petitioner is ready to participate in the proc