PRAFULLA C.PANT,J. - (1.) BY means of this petition moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the proceedings of criminal complaint case no. 364 of 2009, Aness Ahmad vs. Shamshad Ali, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of 1 st Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Roorkee, District Haridwar.
(2.) HEARD learned counsel for the parties, and perused affidavit, counter affidavit and rejoinder affidavit. Brief facts, of the case, are that respondent no. 2 Anees Ahmad (complainant) filed a criminal complaint relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, against the petitioner Shamshad Ali on 25.07.2009, with the allegation that towards the repayment of liability on the part of the present petitioner he gave a cheque no. 262557 for an amount of Rs. 2,00,000/- in favour of the respondent no. 2 on 20.06.2009. Said cheque (copy Annex. 2) was presented before State Bank of India for collection from H.D.F.C. Bank. Vide memorandum dated 23.06.2009 (copy Annex. 3) respondent no. 2 received information of return of the cheque on account of “funds insufficient”. On this complainant (present respondent no. 2) sent a notice dated 07.07.2009 (copy Annex. 1 to the counter affidavit) through a registered post through his Advocate to the present petitioner Shamshad Ali. However, the notice sent by the registered post received back on 21.07.2009, by the respondent no. 2 with the endorsement BAR BAR JANE PAR BHI NAHIN MILA ATAHA WAPAS (even after going again and again not met hence returned). Thereafter respondent no. 2 filed the criminal complaint in question on 25.07.2009, before Ist Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Roorkee, which is registered as criminal complaint case no. 364 of 2009. The trial court, after taking affidavit, and other papers on record issued summoning order against the present petitioner on 11.08.2009. Hence this petition on the ground neither the complainant waited for one month as required under clause (b), nor waited for 15 days as required under clause (c) of section of 138 of Negotiable Instruments Act, 1881.
(3.) IT is argued on behalf of the present petitioner that the trial court has wrongly taken cognizance of the offence punishable under section 138 of Negotiable Instruments Act, as the same was entertained in violation on the above mentioned provisions of the law. It is further argued that the proceedings of the criminal complaint case are liable to be quashed. In support of his case, the petitioner has relied in the case of Anil Kumar Shukla vs. State of U.P. 2008 (2) ALJ 417.;