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'