ORDER

Heard on admission.

This present criminal revision is filed under Section 397 read with Section 401 of the Cr.P.C. being aggrieved by order dated 24/11/2021, passed by learned III Additional Sessions Judge, Shujalpur, District-Shajapur(M.P.) in Criminal Appeal No.18/2019 confirming the Judgment dated 07/03/2019, passed by learned Judicial Magistrate First Class, Shujalpur, District - Shajapur(M.P.) in SCNIA No.1409/2012 whereby petitioner has been convicted under section 138 of Negotiable Instruments Act and sentenced to undergo one year R.I.

including cheque amount of Rs.9,00,000/-.

Learned counsel for the petitioner submits that the learned Appellate Court has failed to consider that the respondent has got knowledge of notice given by the petitioner on 01/08/2012. There is no suggestion give by the respondent to the petitioner that the complaint was premature. In appeal also, no ground has been taken regarding it. The learned Appellate Court has erred in holding that the said complaint was premature. As per Exhibit - P/5, notice has been duly served on respondent on 01/08/20212 and complaint was filed on 21/08/2012 so it was within time. However, he prays that this criminal revision be allowed and the impugned order dated 24/11/2021 be set aside.

On the other hand, learned counsel for the respondent submits that the petitioner failed to prove that the notice was served on respondent. It is further submitted that the learned Appellate Court has rightly held that the complaint was premature because notice was not served on respondent till 09/08/2012.

Heard and perused the record.

On perusal of the record, in complaint filed under Section 138 of the Negotiable Instruments Act, there is no averment that when and how notice was served on respondent. The notice was served on 01/08/2012 is not mentioned in the complaint as well as in the chief-examination of the respondent. On perusal of Ex-P/5, it is clear that on 01/08/2012 and 03/08/2012, the respondent was not found at the time of distribution of registered post(Dak) and on 09/08/2012, the petitioner's registered post was returned back with above comment.

Therefore, how it can be held that the respondent was not having the knowledge regarding the above registered notice on 01.08.2012. Prima facie, it appears that the learned Appellate Court has erred in holding the complaint as pre-mature.

In view of the aforesaid, the appeal is admitted for final hearing.

List the matter for final hearing in due course.

(RAJENDRA KUMAR (VERMA)) JUDGE pn