IMPORTANT POINT
Complaint filed within limitation from second notice is sustainable under law.

T.P. Sharma, J.— By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) the petitioner has challenged the illegality and propriety of the order dated 28.01.2012 passed by 2nd Additional Sessions Judge, Jagdalpur in Criminal revision No. 3/2011 affirming the order dated 21.7.2009 passed by Judicial Magistrate First Class, Keshkal in Criminal Case No. 649/2009 filed against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’), whereby trial Court has issued the process against the petitioner.

2. Mr. Ramesh Kumar Sharma, counsel for the petitioner heard. Both the orders impugned, copy of complaint perused.

3. Learned counsel for the petitioner submits that as per para 10, 11 and 12 of the complaint, first notice under Section 138(c) of the Code has been issued on 1.5.2009 then second notice has been issued on 30.5.2009 and complaint has been filed within limitation from the receiving of second notice on 10.6.2009.

4. Learned counsel for the petitioner further submits that the present case first notice has been received un-served with endorsement that notice is not present therefore complaint filed within limitation from second notice was time-barred and the respondent ought to have filed complaint within limitation of first notice.

5. Learned counsel for petitioner placed reliance in the matter of C.C. Alavi Haji v. Palapetty Mohammed and another1 in which Supreme Court has held that in absence of making allegation about the correct address of accused itself and notice received un-served as accused is out of station was service of notice. Learned counsel for petitioners further placed reliance in the matter of Parasnath Naik v. Durga Prasad Naik2, in which this Court held that direction for producing evidence for preliminary objection is contrary to law and without jurisdiction.

6. Learned counsel for petitioner further placed reliance in the matter of Sukal Sai v. Dinesh Agrawal3, in which co-ordinate bench of this Court has held that complaint filed within limitation from second notice but beyond limitation from first notice for the offence punishable under Sections 138 of the Negotiable Instruments Act is time-barred.

7. As per paras 10, 11, 12 and 13 of the complaint first notice sent to petitioner has been received with an endorsement of postman that petitioner was not available. Therefore, after second notice was issued same was received un-served with an endorsement refuse to accept which was service of the notice. Complaint has been filed within limitation from second notice, but beyond limitation from first notice. As held in case of Alavi Haji v. Palapetty Muhammed and another (Supra) endorsement of the postman that accused was out of station was service of notice. But in present case report of postman reveal that notice was not available which shows that attempt of service of notice was not within the knowledge of petitioner or their relatives/agents. The case of Alavi Haji v. Palapetty Muhammed and another (supra) is distinguishable on the ground of facts. As held in case of Parasnath Naik v. Durga Prasad Naik (supra) Court has not directed for recording evidence to decide preliminary objection. As held in case of Sukal Sai v. Dinesh Agrawal (supra) after service of first notice and assurance of accused for payment of dues filing of complaint from second notice was held as beyond limitation aforesaid case is also distinguishable on the grounds of facts.

8. As held in case of S.L. Constructions and another v. Alapati Shrinivasa Rao and another4, in case of un-served notice complaint may filed within limitation after service of subsequent notice in that case complaint was filed within limitation after 3rd notice was held within limitation and has been further affirmed by Supreme Court in case of Tameeshwar Vaislmav v. Ramvishal Gupta.5 In the present case first notice was not served upon petitioner b