IMPORTANT POINT
A person who does not pay within 15 days of receipt of summons from Court along with copy of complaint under Section 138, cannot contend that there was no proper service of notice.

M.R. Shah, J.—Leave to amend the prayer clauses.

2.Present petition under Section 227 of the Constitution of India has been preferred by the petitioner - original complainant to quash and set aside the impugned judgment and order dtd.2/12/20l0 passed by the learned Principal Sessions Judge, Ahmedabad in Criminal Revision Application No.170 of 2010 as well as the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad in Criminal Case No.223 of 2008 dtd.13/l/20l0, dismissing the complaint in exercise of powers under section 203 of the Code of Criminal Procedure.

3. Facts leading to the present petition, in nutshell are as under:-

4. The petitioner herein - original complainant filed complaint being Criminal Case No.223 of 2008 against the private respondents herein in the court of learned Metropolitan Magistrate, Court No.18, Ahmedabad for the offence under section 138 of the Negotiable Instruments Act as well as for the offences punishable under sections 406, 420, l20(B) of Indian Penal Code or dishonour of the cheque in question. That the learned Metropolitan Magistrate, Court No.18, Ahmedabad by order dtd.4/4/2009 dismissed the said application. Being aggrieved by and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad dtd.4/4/2009 in dismissing the said complaint, petitioner preferred a Criminal Revision Application before the revisional court and the revisional court allowed the said revision application by quashing and setting aside the order passed by the learned Metropolitan Magistrate and remanded the matter to the learned Metropolitan Magistrate. Thereafter, again the learned Metropolitan Magistrate, Court No.18, Ahmedabad dismissed the complaint in exercise of powers under section 203 of the Code of Criminal Procedure by order dtd.30/1/2010 mainly on the ground that statutory notice under section 138 of the Negotiable Instruments Act was not served upon the accused and also on the ground that no case is made out for the offences punishable under sections 406, 420, 120(B) of Indian Penal Code. That Being aggrieved by and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No.18, Ahmedabad dtd.30/1/2010 in dismissing the complaint being Criminal Case No.223 of 2008, petitioner herein preferred Criminal Revision Application No.170 of 2010 before the learned City Sessions Court, Ahmedabad, who by his impugned judgment and order dtd.2/12/2010 has dismissed the said revision application confirming the order passed by the learned Metropolitan Magistrate dismissing the complaint. Being aggrieved by and dissatisfied with the impugned orders passed by both the courts below in dismissing the complaint filed by the petitioner - original complainant for the offence punishable under section 138 of Negotiable Instruments Act, petitioner herein –original complainant has preferred the present petition under Article 227 of the Constitution of India.

5. Mr. Gupta, learned advocate appearing on behalf of the petitioner - original complainant has vehemently submitted that the learned Metropolitan Magistrate has materially erred in dismissing the complaint filed by the petitioner against the private respondents herein for the offence punishable under section 138 of Negotiable Instruments Act on the ground that statutory notice upon the accused was not served. Mr. Gupta learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon’ble Supreme Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and Another1 more particularly para 17 of the said judgment and has submitted that if it was the case on behalf of the accused that he had not received the notice sent by post, in that case, it was open for the accused to make payment of the cheque amount within a period of 15 days of receipt of summons from the Court in respect of the complaint under section 138 of the Act and thereafter it was