High Court Punjab-Haryana High Court

Ankur Aggarwal vs Durga Rani Arora on 9 October, 2009

Punjab-Haryana High Court
Ankur Aggarwal vs Durga Rani Arora on 9 October, 2009
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH




                         Criminal Misc. No. M-4199 of 2009
                         Date of decision : October 09, 2009


Ankur Aggarwal
                                           ....Petitioner
                         versus

Durga Rani Arora
                                           ....Respondent


Coram:       Hon'ble Mr. Justice L.N. Mittal


Present :    Mr. Arun Bansal, Advocate, for the petitioner

             Ms. Monisha Lamba, Advocate for the respondent


L.N. Mittal, J. (Oral)

Criminal Misc. No. 51206 of 2009

The application is allowed and documents are taken on record.

Criminal Misc. No. M-4199 of 2009

Ankur Aggarwal has filed this petition under section 482 of the

Code of Criminal Procedure ( in short, Cr.P.C.) for quashing summoning

order dated 15.1.2008 (Annexure P/1) passed by learned Judicial

Magistrate Ist Class, Faridabad, whereby in criminal complaint instituted by

respondent Durga Rani Arora, petitioner has been ordered to be summoned

under section 138 of the Negotiable Instruments Act, 1881 (in short, the

Act).

According to complaint allegations, cheque for Rs 10 lacs

issued by the petitioner in favour of respondent was dishonoured on account
Criminal Misc. No. M-4199 of 2009 -2-

of insufficient funds. The respondent-complainant sent demand notice

dated 28.12.2007 by registered post to the petitioner. Since the demand

was not met within the stipulated period of 15 days, the respondent

instituted complaint under section 138 of the Act, wherein the impugned

summoning order has been passed.

Learned counsel for the petitioner contended that it was Sunday

on 30.12.2007 and therefore, even if the notice is deemed to have been

received by the petitioner on 31.12.2007, cognizance of the complaint vide

impugned summoning order dated 15.1.2008 was taken before expiry of

mandatory period of 15 days as required under section 138(c) of the Act

and therefore, the impugned summoning order is illegal. Reliance in

support of this contention has been placed on a judgment of Allahabad High

Court in the case of Smt. Hem Lata Gupta v. State of U.P. And another,

2002 Criminal Law Journal, 1522. It was held therein that bar of expiry of

15 days from date of service of notice is for taking cognizance and not for

filing complaint. In other words, complaint filed before expiry of 15 days

from the date of receipt of notice is competent but cognizance cannot be

taken before expiry of the requisite period of 15 days.

In the instant case, however, the petitioner in the petition has

nowhere alleged as to when he received the demand notice. This fact was

in the special knowledge of the petitioner but he has not even made an

averment in the petition that he received notice on 31.12.2007. In view

thereof, the aforesaid contention cannot be accepted. In addition thereto,

the aforesaid contention is hypertechnical. As noticed hereinabove, the

complaint itself was competent and the summoning order could be passed
Criminal Misc. No. M-4199 of 2009 -3-

after expiry of 15 days. Consequently, even if the notice was received on

31.12.2007 by the petitioner, summoning order could have been passed any

day after 15.1.2008. Setting aside the impugned summoning order would be

exercise in futility because learned Magistrate would be competent to again

pass the summoning order. In exercise of inherent jurisdiction under

section 482 Cr.P.C., this Court would not indulge in a futile exercise.

In view of the aforesaid, the instant petition is dismissed.

However, nothing observed hereinabove shall have any bearing on the

merits of the case and the petitioner shall be at liberty to raise all his pleas

before the trial court.


                                                        ( L.N. Mittal )
October 09, 2009                                             Judge
  'dalbir'