RAJESH UPPAL Vs. RAJESH JAIN

JUDGEMENT

(1.) A complaint u/s 138 of the Negotiable Instruments Act was filed by Rajesh Jain against Rajesh Uppal and the Forest Magistrate, Jammu took cognizance and issued process against the petitioner by his order dated 10 -11 -1998. The petitioner hereinafter appeared before the court and applied for dropping of the proceedings on the ground that the cognizance has been taken after the expiry of period of limitation within which the complaint could be filed. The learned Magistrate rejected this application by his order dated 09 -09 -2000. By the same order complainant was allowed to produce the original cheque photo copy of which had already been placed on record with the complaint.

(2.) THE petitioner challenges the order taking coginzance on the ground that the complaint is barred by time because the notice calling upon the petitioner to pay Rs. 5400/ - for which cheque No. 5130005 dated 20 -03 -1998 drawn on the Jammu and Kashmir Bank Ltd. Residency Road, Jammu was issued after the expiry of 15 days from the date cheque was dishonoured. The complainant was informed that the cheque has been dishonoured.

(3.) THE contention of Mr. Subash learned counsel appearing for the petitioner is that the complaint get the information that the accused -petitioner had failed to arrange the payment of the cheque on 17 -09 -1998. So the period of 15 days within which the notice had to be issued would commence from this date. Even if the day Bank informed him that the cheque had been dishonoured is excluded 15 days would expire on 2nd Oct. 1998. But as per receipt the notice was sent through registered post on 03 -10 -1998 and as such it is beyond the period of limitation. He next argued that even this notice was returned by the postal authorities with the endorsement despite repeated visits as the postman could not meet the addressee. This according to the learned counsel is no service because if the addressee could not be reached by the postman, complainant should have made effort to serve him notice by any other means including pasting it on the outer door of his house. Since it is not case of refusal of the notice, therefore, it cannot be deemed service of the notice in the absence of which the complaint is not maintainable.