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Judgment
Prafulla C. Pant, J.—This is a restoration application MCRC No. 150 of 2010, for restoration of criminal misc. application (C-482) No. 35 of 2010, which was dismissed for non prosecution on 04.03.2010.
Heard and perused the affidavit accompanying the application. In view of principle of law laid down in Madhumilan Syntex Ltd. v. Union of India, 2007 A.I.R.S.C.W, 1971, the restoration application is allowed on the condition that the petitioner/applicant shall argue the matter on the restored petition today itself. The application is allowed on the above condition. The Criminal Misc. Application (C-482) No. 35 of 2010 is restored to its original number.(Urgency application No. 1399 of 2010 stands disposed of).
Also, heard on the petition u/s 482 of Cr.P.C, restored today.
The petitioner has sought quashing of the proceedings of criminal complaint case No. 1105 of 2009, Sunil Verma v. Baljeet Singh, relating to offence punishable u/s 138, of the Negotiable Instruments Act, 1881, pending in the court of Chief Judicial Magistrate, Rudraprayag.
Learned Counsel for the petitioner contended that there is no service of notice as required u/s 138 of Negotiable Instrument Act, 1881, as such, the criminal complaint is not maintainable. Perusal of the copy of the criminal complaint, which is annexed as Annexure-1 to the petition shows that it has been specifically stated that the notice was got sent by registered post on 14.10.2009, to the petitioner asking him to pay the amount mentioned in the cheque (dishonoured) within the period of 15 days. After expiry of 15 days. The criminal complaint appears to have been filed on 11.11.2009. Prima-facie, it does not appear that ingredients are not made out from the contents in the complaint. Further, it is for the trial court to see during the trial after recording evidence of the parties, whether actually there was service of notice on the petitioner or not.
It is also pleaded on behalf of the petitioner that the petitioners� cheque was got lost for which the first information report was lodged by the petitioner. Referring to the case of Raj Kumar Khurana v. State (NCT of Delhi (2009) 2SCC (cr.) 936, it is pleaded that the cheque was not issued as stated by the complainant. Again, it is a question of fact which can be examined by the trial court after recording evidence, as to whether the petitioner had issued the cheque in question which got bounced on its presentation, or not. This Court is not inclined to give any opinion on disputed facts on the basis of half baked evidence.
For the reasons as discussed above, without expressing any opinion as to final merits of the case, the petition u/s 482 of Cr.P.C. is dismissed.