ASHWANI KUMAR SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel appearing for the petitioner and learned counsel for the opposite parties. The order dated 24.3.2007, passed in Complaint Case No. 70 of 2007, whereby and whereunder, learned Judicial Magistrate, Ranchi, took cognizance of the offence under Section 138 of the Negotiable Instruments Act against the petitioner, is being sought to be quashed on the ground that notice demanding money of cheque, which got bounced, has never been served upon the petitioner.

(2.) Learned counsel appearing for the petitioner submits that in the complaint petition it has simply been averred that a legal notice was sent to the accused, but neither reply nor payment was made by the accused to the complainant and thereby the complainant is absolutely silent as to whether notice had ever been served upon the accused persons. In this regard, it was submitted that even in a given case, presumption of notice being served can be drawn in terms of Clause 27 of the General Clauses Act provided necessary ingredients postulated under that provision is there, but that is also absent and as such, in absence of any averment that demand notice has been served, complaint is not maintainable.

(3.) Learned counsel in support of his submission has referred to a decision rendered in a case of Shakti Travel & Tours vs. State of Bihar and Anr, 2002 9 SCC 415, wherein it has been held that where the complainant does not assert that demand notice has been served upon the accused, the complaint itself is not maintainable.