Advocates:
['PRAVEEN KUMAR SHARMA', 'H S BORA', 'G A', 'Z U SIDDIQUIE']

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Restoration Application (MCRC) No. 453 of 2010

Delay Condonation Application No. 594 of 2010

In

Criminal Misc. Application (C482) No. 271 of 2008

Raj Kumar Singh

S/o Parmeshwar Singh

R/o 1/32 Durga Nagar

Bereilly, (U.P.)

.……….Applicant/petitioner

Versus

1.

State of Uttarakhand

2.

M/s New Sagar Transport Co.

Through its proprietor Shiv Naresh Pandey

S/o Bhawani Shankar Pandey

R/o New Sagar Transport, Gurudwara

Building Lalkuan, District Nainital

…………Opposite parties.

Shri Praveen Kumar, Advocate present for the petitioner.

Shri B.S. Parihar, Brief Holder, present for the State.

Shri Z.U. Siddiquie, Advocate, present for respondent No. 2 /

complainant.

Hon’ble Prafulla C. Pant, J.

This is delay condonation application

no. 594 of 2010 for condonation of delay in

filing the restoration application no. 453 of

2010

for

restoration

of

the

criminal

2

miscellaneous application no. 271 of 2008,

which was dismissed for non prosecution on

19.11.2009.

The

delay

condonation

application is supported by affidavit of

Rajkumar

Singh,

petitioner.

The

delay

condonation application 594 of 2010 is

allowed. Delay is condoned.

2.

Heard on restoration application MCRC

no. 453 of 2010, for restoration of the

petition moved under section 482 of Cr.P.C.,

which was dismissed for non prosecution on

19.11.2009. The application is supported by

affidavit of the petitioner in which the

absence on the date fixed has sufficiently

been explained.

3.

The restoration application MCRC no.

453 of 2010, is allowed on the condition that

the parties shall be heard today on the main

petition sought to be restored (Reliance is

placed on the principle laid down in

Madhumilan Syntax ltd. vs. Union of

India, (2007) AIR SCW page 1971).

Accordingly, the Criminal Miscellaneous

Application (C482) No. 271 of 2008, is

restored.

3

4.

Heard on the restored petition moved

under section 482 of Cr.P.C.

5.

Learned counsel for the petitioner drew

the attention of this Court to Annexure-2B

to the petition which is the question-answer

relating to whether the petitioner has filed

copy of the notice allegedly served on the

accused/petitioner

or

not,

with

the

complaint before the trial court, and the

answer is negative. On that ground, it is

pleaded that the trial court has erred in law

in summoning the accused without getting

satisfied as to service of statutory notice on

the petitioner/accused.

6.

The impugned criminal case is a

complaint case filed under section 138 of

Negotiable Instruments Act, 1881. In its

para 3, it is pleaded by the complainant that

the notice was got sent by the registered

post to the petitioner which was duly served

on him. The Magistrate in the summoning

order has mentioned that not only the

complainant

in

his

examination

under

section 200 of Cr.P.C., stated that the notice

was served on the petitioner/accused, but

4

also filed register AD (Acknowledgment Due).

In the circumstances, it cannot be said that

not filing copy of the notice with the criminal

complaint vitiates the trial.

7.

Learned

counsel

for

the

petitioner

referred to Annexure-2C, which is copy of

letter dated 03.07.2004, sent on behalf of

the

petitioner/accused

to

the

complainant/respondent no. 2 that in the

registered letter there were only a white

paper sheet inside the envelope. Now, this is

disputed question of fact as to whether the

complainant got sent notice or the blank

paper, which cannot be examined by this

Court in its jurisdiction under section 482 of

Cr.P.C., with half baked evidence before it. It

is for the trial court to see after recording

evidence of the parties as to whether the

statutory notice was served on the petitioner

or not.

8.

In the above circ