JUDGMENT

U.C. Dhyani, J.(Oral)

By means of present application under Section 482 Cr.P.C., the applicant seeks to set aside the order dated 07.09.2013, passed by Addl. Sessions Judge II, Rudrapur, Udham Singh Nagar, as also the revision preferred by the respondent against the summoning order dated 08.12.2011, passed by Addl. Chief Judicial Magistrate, Kashipur, in criminal complaint case no. 2417 of 2011, titled as Hariom Aggarwal vs Mahendra Kumar.

2. Applicant is the complainant, who filed a criminal complaint case against the accused-respondent under Section 138 of the Negotiable Instruments Act. Annexure 4 is the copy of the criminal complaint case filed by the complaint against the accused for prosecuting the accused under Section 138 of the Negotiable Instruments Act.

3. Accused was summoned to face the trial for the said offence. Aggrieved against the same, the accused preferred a criminal revision, which was allowed by the revisional court. Summoning order was set aside by the impugned order dated 07.09.2013, against which present application under Section 482 Cr.P.C. has been filed by the complainant. Learned revisional court allowed the criminal revision filed by the accused-respondent on the ground that notice was not served upon the accused-respondent. Learned revisional court relied upon the endorsement made by the post office on the notice issued to the accused, in which it was mentioned that “Factory is sealed. Drawer is not found". Learned revisional court was of the view that service of notice cannot be deemed on the accused in view of such endorsement of the post office.

4. It is the submission of learned counsel for the applicant that the cheque was presented before the bank for encashment. The same was dishonoured on the ground ‘insufficiency of funds'. The complainant-applicant was, therefore, left with no option, but to issue a statutory notice to the accused-respondent, on his correct address. Through such notice, the money was demanded within 15 days of receipt of such notice. Copy of demand notice has been brought on record. When the notice was sent to the accused-respondent, the same was returned unserved. The acknowledgement of the notice was returned with the remark that “Factory is sealed. Drawer is not found".

5. The law is settled on the point. If the notice is sent within prescribed period of time and the same is returned with such remark –“Factory is sealed. Drawer is not found", it cannot be said that the notice was defective. Said analogy may be drawn from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872. The same is in conformity with the procedure laid down in the Negotiable Instruments Act.

6. Applicant filed the complaint against the accused-respondent in the court of Addl. Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar. In criminal complaint case no. 2417 of 2011, the address of the respondent was mentioned. The same address was mentioned in the legal demand notice. When the accused was summoned to face the trial, the same respondent, with same address, preferred criminal revision before the revisional court, who set aside the summoning order, aggrieved against which, present application under Section 482 Cr.P.C. has been filed.

7. Hon'ble Apex Court in C.C. Alavi Haji vs Palapetty Muhammed and another, (2007) 6 SCC 555, which covers the entire subject matter, observed as below:

“7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., (1999) 7 SCC 510, the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a proce