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RAJENDRA PRASAD & ANOTHER versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Rajendra Prasad & Another v. State Of U.P. & Another - APPLICATION U/s 482 No. 2079 of 2007 [2007] RD-AH 2091 (8 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 48)

Criminal Misc. Application  No.   2079    of 2007

***

1. Rajendra  Prasad Gupta, son of Sri

Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannaul (U.P.)

Proprietor of M/s Sri Ram Trading Company,

Situated at Naveen Krishi Utpadan Mandi Samiti,

Sthal Tirawaganj, District Kannauj U.P.

2. M/s   Sri Ram Trading Company,  situated at Naveen

Krishi Utpadan Mandi Samiti, Sthal Tirawa Ganj, District

Kannauj  (U.P.)  through its sole proprietor Rajendra

Prasad Gupta  son of  Sri Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannaul (U.P.) ..... Applicants.

Vs.

1. State of U.P.

2. Sri Purushottam Nath Gupta,

Son of Shri Kailash Nath, R/o 74/24, Collector

Ganj, Kanpur Nagar. ....... Complainant- Opp.parties.

A n d

Criminal Misc. Application  No.   2080    of 2007

***

1. M/s   Sri Ram Trading Company,  situated at Naveen

Krishi Utpadan Mandi Samiti, Sthal Tirawa Ganj, District

Kannauj  (U.P.)  through its sole proprietor Rajendra

Prasad Gupta  son of  Sri Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannauj (U.P.)

2. Rajendra  Prasad Gupta, son of Sri

Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannaul (U.P.)

Proprietor of M/s Sri Ram Trading Company,

Situated at Naveen Krishi Utpadan Mandi Samiti,

Sthal Tirawaganj, District Kannauj U.P. ..... Applicants.

Vs.

1. M/s Vishnoi Enterprises a registered partnership

Firm situated at 74/24, Collector Ganj, Kanpur Nagar

Through  its partner Shri Keshav Nath Gupta, Son

Of Shri Kailash Nath, R/o 74/24,

Collector Ganj, Kanpur Nagar.

2. State of U.P. .......  Complainant Opp.parties.

A n d

Criminal Misc. Application  No.   2081   of 2007

***

1. M/s   Sri Ram Trading Company,  situated at Naveen

Krishi Utpadan Mandi Samiti, Sthal Tirawa Ganj, District

Kannauj  (U.P.)  through its sole proprietor Rajendra

Prasad Gupta  son of  Sri Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannauj(U.P.)

2. Rajendra  Prasad Gupta, son of Sri

Chhedi Lal Gupta ( Firojpur Wale),R/o House No.2, Avantibai Nagar, ( Masjid Ke Samane Wali Gali Me)

Tirawa Ganj, District Kannaul (U.P.)

Proprietor of M/s Sri Ram Trading Company,

Situated at Naveen Krishi Utpadan Mandi Samiti,

Sthal Tirawaganj, District Kannauj U.P.  .... Applicants

Vs.

1. State of U.P.

2. M/s Vishnoi Enterprises a registered partnership

Firm situated at 74/24, Collector Ganj, Kanpur Nagar

Through  its partner Shri Keshav Nath Gupta, Son

Of Shri Kailash Nath, R/o 74/24,

Collector Ganj, Kanpur Nagar....... Complainant         Opp.parties.

****

Hon'ble Barkat Ali Zaidi, J

1. The facts of the aforementioned three cases are similar and they are accordingly  being disposed off  by this common order.  The  petition   No.  2079 of 2007  will be  the leading case.

2. The respondent no. 2 has filed a complaint under Section 138 of The Negotiable Instruments Act against the applicants and the  learned Special C.J.M. Kanpur Nagar has issued the summons.

3. The applicants say that the complaint is time barred  because it has not been filed within 30 days after the expiry of 15 days from the receipt of the notice as contemplated by Sections 138 (c) of  and 142 (b). The two provisions  may be extracted for ready reference:-

" 138 ( c)  the drawer of such cheque fails to make  the payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

"142 (b)  such complaint is made within one month of the date on which the cause of action arises under clause (c)  of the proviso to Section 138."

4. The first notice which was given by the respondent no. 2 under Section 138 (c)  was by registered post  and it has been mentioned in the complaint that the postman went to deliver the registered notice at the given address but the  applicants deliberately avoided  service as per the  endorsement  in the postal  article  by the postman and  left a massage at both place business and residence to collect the registered notice which the  applicants did not  and then six or seven days  thereafter, the notice was returned back to the respondent no.2 as not claimed.

5. The respondent has further mentioned in the complaint that the complainant informed the applicants  on telephone about the same. It was further mentioned  in the complaint that thereafter, the complainant personally served a copy of the registered notice to the applicants.

6. According to the pronouncement of the Supreme court in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar, [ 1998 J.I.C. 1069 (S.C.)]   that time will be calculated from the date of the first notice, the question will naturally arise as to when the first notice will be deemed to have been given whether the one given by registered post, or the one served by him personally . It is a matter of evidence whether the postman went to deliver the registered notice, and whether, he left information that the notice be collected, for which, the postman will need to be examined or other evidence about  the same will have to be led. Similarly, evidence will be required for ascertaining the version of the complainant that he delivered the notice personally to the applicants.

7. The matter cannot be decided in these proceedings because evidence will be required, and it will be for the Magistrate to decide the same, after recording evidence.

8. In the circumstances, the petitions cannot be decided  only on the basis of averments contained therein and, without evidence and the petitions have, therefore, to be dismissed.

9. Petitions dismissed.

10. A copy of this order be kept on the file of Criminal Misc. Application Nos.2080 of 2007 and 2081 of 2007 also.

Dated: 8.2.2007

2079/2007 n.u.


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