Anand Dubey vs State of Uttaranchal and Daman Sachdeva

Prafulla C. Pant, J.—By means of this petition, moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the criminal complaint case No. 274 of 2004 Daman Sachdeva v. Anand Dubey relating to offence punishable u/s 138 of Negotiable Instruments Act, 1881, pending in the court of Judicial Magistrate, C.B.I, Dehradun.

Heard learned Counsel for the parties and perused the affidavit and counter affidavit.

Brief facts of the case are that complainant (respondent No. 2) Daman Sachdeva, filed a criminal complaint No. 274 of 2004, before the court of Chief Judicial Magistrate, Dehradun, on 15.12.2003, against the present petitioner-Anand Dubey, with the allegations that he (petitioner) approached the complainant to sell his property in Clement Town. After inspecting the spot, he handed over three cheques (No. 1231731, 1231732 and 121733), amounting Rs. 3 lakhs (each amounting Rs. 1 lakh) to the complainant (respondent No. 2) for purchasing said property. However, when the cheques were presented to the bankers (Oriental Bank of Commerce, Clement Town, Dehradun), they were dishonoured on 04.11.2003 on the ground of insufficient funds in the account of the petitioner (account No. 9959). On receiving said information, the complainant (respondent No. 2) sent two demand notices to the petitioner on his two different addresses through registered post No. 1212 and 1213 on 27.11.2003. It is stated in the criminal complaint by respondent No. 2/complainant that the demand notices were served on the accused (petitioner) on 28.11.2003. However, the petitioner did not pay the amount, and criminal complaint was filed by the complainant on 15.12.2003. After perusing the statement on oath (affidavit) of accused u/s 200 Cr.P.C., and considering the evidence on record, the Judicial Magistrate, C.B.I., Dehradun, to whom the criminal complaint case appears to have been transferred, summoned the accused vide impugned order dated 29.01.2004, for his trial in respect of offence punishable u/s 138 of Negotiable Instruments Act, 1881.

Learned Counsel for the petitioner challenged the proceedings of criminal complaint on two grounds before this Court:

(i) Joint notice in respect of all the three cheques was invalid.

(ii) The criminal complaint was filed without waiting for 15 days from the date of service of notice on the petitioner.

As far as the joint notice in respect of all the three cheques is concerned, the Negotiable Instruments Act, 1881, is silent and does not bar serving a single notice particularly in respect of cheques of same date issued to the same person. No authority of law has been shown to this Court in support of the contention, raised on behalf of the petitioner in this regard. Since as per the allegations of the complainant all the three cheques were dated 12.05.2003, in favour of the same person, in respect of same transaction and in respect of same account of the same bank, as such, this Court is of the view that mere fact that single notice was sent in respect of three cheques, cannot invalidate the same.

Shri Ramji Srivastava, learned Counsel for the petitioner, drew attention of this Court to para-9 of the affidavit, filed with the petition in which it has been stated that no notice u/s 138 of Negotiable Instruments Act, 1881, was served on the petitioner. On its basis, it is argued that since said fact is not denied in the counter affidavit, as such, it cannot be said that the criminal complaint was maintainable before the expiry of 15 days of service of notice. I have gone through the counter affidavit, filed on behalf of respondent No. 2-Daman Sachdeva. In para-5 of the counter affidavit, it has been stated that the contents of para-9 are wrong, hence denied. No doubt, in that para-5 of the counter affidavit, other paras of the affidavit filed by the petitioners, are also mentioned. But it cannot be said that respondent No. 2 has not denied said averments. Otherwise also, whether the notice was actually served or not is a question of fact, which can be examined by the trial court after recording evidence. From the papers on record, this Court does find that in para-6 of the criminal complaint, it is clearly stated by the complainant that the demand notices were served personally on the accused on 28.11.2003. Admittedly, the criminal complaint was filed on 15.12.2003. As such, prima facie it cannot be said that the criminal complaint was filed before expiry of 15 days of service of notice. The Magistrate, in his order dated 29.01.2004, has discussed the evidence, produced before it, before summoning the accused (petitioner) in respect of offence punishable u/s 138 of Negotiable Instruments Act, 1881. In the circumstances, this Court does not find any reason to interfere with the trial, under its jurisdiction u/s 482 Cr.P.C.

For the reasons, as discussed above, this petition, u/s 482 Cr.P.C., is liable to be dismissed with the observation that the petitioner may raise the plea relating to service of notice and other pleas, before the trial court, who will examine it on the basis of evidence on record at the time of trial. Accordingly, with this observation, the petition u/s 482 Cr.P.C. is dismissed. Interim order dated 25.11.2004, passed by this Court, stands vacated.