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2022 Supreme(HP) 116
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
M/s Sohan Lal Vinod Kumar S/o Shri Sohan Lal – Petitioner
Versus
Raj Kumar S/o Shri Ram Parkash – Respondent
Criminal Misc. Petition (Main) U/s. 482 Cr.P.C. No. 518 of 2021
Decided On : 17-03-2022
Advocate Appeared:
For the Petitioner: Varun Chandel.
For the Respondent: Ajeet Sharma.
Point of Law : It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee.
Headnote:
Code of Criminal Procedure, 1973 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 – Dishonor of cheque due to insufficient funds – Savings of inherent power of High court - Respondent-complainant instituted a complaint under Section 138 of Act in Court of Judicial Magistrate alleging therein that petitioner-accused with a view to discharge his lawful liability issued cheque for sum drawn at Punjab National Bank, in his favour - However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient fund - Since accused despite having received legal notice served upon him by complaint failed to make payment good, complainant instituted complaint under Section 138 of Act against accused in competent court of law.
Findings of the Court:
Court does not find any illegality and infirmity in same and as such, no interference is called for - Sessions Judge while passing order impugned in instant proceedings has rightly observed that question whether return memo was received by complainant on same day is a question to be decided on basis of evidence led on record by respective parties and otherwise it being triable issue cannot be decided in instant proceedings i.e. criminal revision - In view of discussion made hereinabove as well as law laid down by Hon’ble Apex Court, this Court finds no illegality and infirmity in impugned judgment passed by learned Additional Sessions Judge, and same is upheld.
Result: Petition dismissed
ORDER :
1. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing and setting aside the order dated 7.4.2021, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Criminal Revision No. 31-10 of 2019, affirming the orders dated 16.4.2019 and 2.9.2019, passed by learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, Himachal Pradesh, in case No. 163-03 of 2017, whereby trial Court after having recorded the preliminary evidence of the respondent-complainant ( hereinafter referred to as the complainant) arrived at a conclusion that there is sufficient material to proceed against the accused for having committed the offence under Section 138 of the Negotiable Instruments Act (for short Act) and accordingly summoned him to the Court for 24.08.2018 and thereafter vide order dated 2.9.2019 put notice of accusation to him, to which he pleaded not guilty and claimed trial.
2. Precisely, the facts of the case as emerge from the record are that the respondent-complainant instituted a complaint under Section 138 of the Act in the Court of learned Judicial Magistrate 1st Class, Bilaspur, District Bilaspur, H.P. alleging therein that petitioner-accused with a view to discharge his lawful liability issued cheque bearing No. 627312, dated 17.07.2017 for sum of Rs. 1,33,300/- drawn at Punjab National Bank, Branch Officer Talyana, District Bilaspur, Himachal Pradesh in his favour. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient fund. Since accused despite having received legal notice served upon him by the complaint failed to make the payment good, complainant instituted the complaint under Section 138 of the Act against the accused in the competent court of law.
3. Having taken cognizance of the complaint and after recording preliminary evidence, learned court below vide order dated 16.4.2018 found sufficient grounds to proceed against the accused for his having committed offence punishable under Section 138 of the Act and accordingly summoned him for 24.08.2018. On 2.9.2019, learned court below put notice of accusation to the accused of his having committed offence under section 138 of the Act, to which he pleaded not guilty and claimed trial.
4. Being aggrieved with the summoning order dated 16.4.2018 and thereafter notice of accusation put vide order dated 2.9.2019, accused preferred Criminal Revision Petition No. 31-10 of 2019, in the court of Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P on the ground that since respondent-complainant failed to issue notice within a period of 30 days from the date of receipt of return memo from the bank concerned, complaint having been filed by him ought to have rejected.
5. Precisely, the case of the petitioner-accused before the Additional Sessions Judge was that vide memo dated 19.7.2017 bank concerned had apprised the respondent-complainant with regard to dishonouring of cheque and as such, he ought to have served legal notice within 30 days from that date, but in the case at hand, legal notice was issued to the petitioner-accused on 19.8.2017 i.e. after expiry of 30 days. Learned Additional Sessions Judge in its order though found that cheque in question was returned vide memo dated 19.7.2017 issued by the Punjab National Bank to State Bank of India, but observed that it cannot be presumed that information with regard to same was given to the complainant on the same day by State Bank of India. He further observed in the order that though time limitation provided under the act is mandatory and non-compliance thereof is fatal, but the question whether return memo dated 19.7.2017 was received by the complainant on 19.7.2017 is a triable issue and cannot be decided in the instant proceedings. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying the
