IMPORTANT POINT
Once stated that the notice sent by registered post to address of drawer need not aver further and deemed to have been served.

Naheed Ara Moonis, J. — Heard learned counsel for the applicants, Sri Ashish Agarwal, learned counsel for the opposite party No.2 and the learned AGA and have been taken through the record.

2. The instant application has been filed by the applicants with a prayer to quash the order dated 26.9.2006 passed by the Judicial Magistrate First Varanasi as well as the entire proceeding of the Complaint Case No. 216 of 2006, Ms. Agarwal Computers v. M/s Super Computers, under Section 138 Negotiable Instrument Act pending in the court of Chief Judicial Magistrate Varanasi.

3. It is submitted by the learned counsel for the applicants that the applicants runs the business of computer and its appliances in the name and style of M/s Super Computer and Network in Mahalla Kadamtar Police Station City Kotwali District Mirzapur. The opposite party no.2 Mohan Lal Gupta is also running the business of P.C.S in the name of M/s Agarwal Computers. The applicants and the opposite party No.2 both having the common interest developed their good business rapport. The opposite party No.2 by adopting unfair and foul means got the blank cheque of the applicants and on the basis of which he is trying to blackmail the applicants while the applicants have never issued any cheque to the opposite party No.2 The statement of the complainant has been recorded but the same is not on record. On the basis of the affidavit of the opposite party No.2, the court below has proceeded with the matter to summon the applicants to face the trial under Section 138 Negotiable Instrument Act. The applicants have neither issued any cheque to the opposite party No. 2 nor have been served with any notice with respect to dishonour of the cheque from the opposite party No.2. The complaint filed by the opposite party no.2 being sheer abuse of process of law deserves to be dismissed.

4. It is submitted by the learned counsel for the complainant that the order passed by the learned Magistrate does not suffer from any legal or procedural infirmity or perversity. The learned Magistrate has found sufficient materials showing the complicity of the applicants.

5. For the proper analysis of the case in hand, the order dated 17.1.2008 passed by another Bench of this court is reproduced here to below:

“Heard learned counsel for the applicant, learned AGA and perused the record.

Argument of learned counsel for the applicant is that while passing the summoning order on a complaint under section 138 Negotiable Instrument Act, the Magistrate has relied upon the affidavits only and has not recorded statement of the complainant under Section 200 or witnesses under Section 202 Cr.P.C. A perusal of the impugned order shows that the statement of the complainant and that of the witnesses were recorded by the court below. The applicants have filed copy of the order sheet in support of their submission that affidavits were filed but it is not clear from the record whether in addition to the affidavits, their statement was also recorded or not. There is description of recording of the statement in the order of Court. This Court will infer that the statements were recorded unless fact is proved otherwise. In the circumstances of the case let a report be called for from Chief Judicial Magistrate Varanasi within two weeks whether in complaint case No. 216 (M/s Agarwal Computers v. M/s Super Computers) under Section 138 Negotiable Instrument Act Police Station Cantt. Varanasi, statements of the complainant and the witnesses under Section 202 Cr.P.C. were recorded, by the Court or whether the Court acted only on the affidavits filed by them. Let this case be listed immediately after two weeks.”

6. On the date of order dated 17.1.2008, proceedings of the court below has not been stayed. When this fact came to the notice of the opposite party No.2 he filed counter and submitted in view of the provisions laid down in Section 145 Negotiable Instrument Act whereby the court below is competent to take ev