- (1.) PRAFULLA C. Pant, J. 1. This revision, filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 07. 07. 2000, passed by Session Judge, Udham Singh Nagar, in Criminal Revi sion No. 2153/2000 whereby the Said court allowed the revision filed by the accused / respondent no. 2 Mahendra Kumar Agarwal, setting aside the order dated 01. 08. 1998, passed by Additional Chief Judicial Magistrate, Kashipur, re jecting the objection / protest petition of the accused in Criminal Complaint Case No. 692 of 1997, relating to offence pun ishable under Section 138 of Negotiable Instruments Act, 1881.
(2.) HEARD learned counsel for the parties. Brief facts of the case are that a criminal complaint (Case No. 692 of 1997) was filed by the present revision- '" ist Ashok Kumar Agarwal against ac cused / respondent no. 2 Mahendra Kumar Agarwal alleging that accused Mahendra Kumar Agarwal, Smt. Uma Agarwal and Darpan Agarwal, who are members of the same family running a partnership business in the name and style of M/s Agarwal Auto Traders. Com plainant had good relations with said family and the accused Mahendra Kumar Agarwal sought a financial as sistance for the business of the aforesaid firm, and received a loan of Rs. 2,40,000/- through cheque no. 007311, dated 04. 09. 1996. The accused had promised to pay back the said loan within a pe riod of six months. When asked for re payment of loan accused Mahendra Kumar Agarwal issued a cheque no. 599537 dated 28. 02. 1997 for a sum of Rs. 2,40,000/ -. But when the complain ant presented the cheque before the Bank it was returned on 12. 03. 1997 by the Bank with the report that in the account of the drawer sufficient amount '. is not available. On this complainant tried to contact the accused, but he avoided to meet. On this complainant got sent a registered notice through his Advocate Rishi Kumar Agarwal and also got sent one under certificate of posting on 17. 03. 1997. The notices through reg istered post were sent to the accused on his permanent Pusiness address of Kashipur and also on his temporary resi dential address of New Delhi. Accused got the notices returned from Kashipur with the endorsement that for a long pe riod the addressee is out (even though the firm was doing its business at Kashipur ). The notices issued on New Delhi address were got sent back with the endorsement that 'addressee not met'. However, notices sent by certifi cate of posting were not received back and as such it can be presumed that the same were received by the addressee. Again on 05. 0 4. 1997 another notice was also sent to the accused but he re fused to accept the same. No payment was made within 15 days of receipt of notice by the accused. On this criminal complaint was filed by the complainant (present revisionist), who got recorded his statement under Section 200 Cr. P. C. and also filed the documents including the original cheque dated 28. 02. 1997, information dated 12. 03. 1997 received from the Bank and copy of the notices sent to the accused. The Additional Chief Judicial Magistrate, Kashipur, took the cognizance on the complaint filed by the complainant and summoned the four accused, namely, 1. M/s Agarwal Auto Traders through its partner Mahendra Kumar Agarwal, 2. Mahendra Kumar Agarwal, J. Uma Agarwal and 4. Darpan Agarwal, for allegedly commit ting offence punishable under Section 138 of Negotiable Instruments Act, 1881. The said order was passed by the Magistrate on 08. 05. 1997. It appears that the accused filed objections on 16. 04. 1998 to the crimi nal complaint challenging the maintainability of the criminal complaint and praying for setting aside the order summoning the accused. After hearing the parties, the Additional Chief Judicial Magistrate, Kashipur, before whom crimi nal complaint was pending dismissed the objections vide his order dated 01. 08. 1998. Aggrieved by said order, Criminal Revision No. 63 of 2000 was filed by the accused Mahendra Kumar Agarwal before Sessions Judge. Learned Sessions Judge after hearing the parties allowed the revision and set aside the or der dated 01. 08. 1998, and further dis missed the criminal complaint filed by the complainant. Hence this criminal re vision was filed by the complainant Ashok Kumar Agarwal before Allahabad High Court on 28. 09. 2000, from where it is received by transfer under Section 35 of U. P Reorganisation Act, 2000 (Central Act No. 29 of 2000) for its disposal.
(3.) SRI Sudhir Kumar, learned coun sel for the revisionist / complainant as sailing the impugned order passed by the revisional court argued that the said court has committed error of law by taking the view that since the address of the accused had changed as such if the notice sent to him was received back, it cannot be treated service on the accused / respondent. On examination of the record, I found that from the allegations made in the complaint it is clear that before filing criminal complaint against the accused in respect of offence pun ishable under Section 138 of Negotiable Instruments Act, 1881, notices were sent to the accused not only on the address of Kashipur where the firm used to do its business but also on the address of the accused / respondent no. 2, where he temporarily used to reside in Delhi. Notice sent to the accused on his busi ness address received back with the en dorsement that accused had gone out of station for quite some time. The notice sent to Delhi address was received back with the endorsement that he has left the address. In these circumstances, this Court is of the view that accused can not take benefit of concealment of his address after he left Kashipur i. e. his place of business for sometime. Apart from this once the allegations made in the complaint were found true by the Magistrate after recording the statement of the complainant under Section 200 Cr. P. C. and considering other papers on record and accused was summoned, the prosecution of the criminal complaint could not have been set aside on the ground of factual disputes raised by the accused in his objections without record ing evidence on that point. At the most on the basis of the objections what can be said is that the accused is disputing his address and receipt of notice. Dis puted fact as to the address of the ac cused could not have been a ground for setting aside the prosecution and dis missing the complaint. Learned Sessions Judge, who passed the impugned order, should have permitted the complainant to adduce the prosecution evidence and the accused was at liberty to rebut the same by adducing evidence in defence. The summoning order in the criminal complaint could not have been set aside particularly when it was passed on the evidence on record adduced by the com plainant. On behalf of respondent no. 2 / accused Sri Deepak Dhingra drew atten tion of this Court to the cases of A. Sudershan Vs. Mannen (Shabir) and an other, 1997 (2) Crimes 707, Jaya Chandran Vs. Baburaj, DCR 516 (Kerala), Shibu Chakraborty Vs. Smt. Arati Poddar and Anr. , 1996 (2) All In dia Criminal Law Reporter, pg. 497, Mahabir Prasad Bargrodia Vs. State of Bihar, 1999 OCR, pg. 228 (Patna) and B. Adhikari Vs. Ponra) 1996 CRI. L. J. 180, and it is argued that unless there is service on the respondent / accused the criminal complaint in respect of of fence punishable under Section 138 of Negotiable Instruments Act. 1881 is not maintainable. Attention of this Court is also drawn to clause (c) of said Section in which word 'receipt' is used. I have gone through the aforesaid case laws. Facts of the present case are different from the aforesaid cases. It is not the case of the accused that the notices were sent by the complainant on wrong address. Admittedly, the address of the accused / respondent at Kashipur where he runs business was the correct address and the notice was got sent back by the accused with the endorsement that the partner (accused) had gone out of sta tion. Even the address of Delhi where the accused temporarily used to reside cannot be said to be a wrong address as the notice was received from that place with the endorsement that the ad dressee has left the address. If the ar gument advanced on behalf of the ac cused is accepted then any accused by concealing his address and changing his address and thereby avoiding the serv ice can claim that he was not served with the notice as there is no receipt of the notice and as such on that basis he would start claiming that the criminal complaint made against him cannot be maintained. That is not the object of the law requiring service of notice on the drawer, who issued the cheque. This Court cannot close its eyes to the spirit of Section 138 of Negotiable Instru ments Act, 1881. It is not meant for protecting a person who after getting dis honoured the cheque issued by him, by concealing his new address avoids the service. On the facts and circumstances of the case having gone through the im pugned order dated 01. 08. 1998, passed by Additional Chief Judicial Magistrate, Kashipur, who summoned the accused, this Court is satisfied that there was suffi cient service of notice on the accused who failed to pay the amount within a period of 15 days to avoid his prosecution.;