A.K. Jain vs Rajesh Yadav

Servesh Kumar Gupta, J.—By way of this Criminal Miscellaneous Application, the applicant has prayed for quashing of the summoning order dated 13.5.2008, passed by the Ist Additional Chief Judicial Magistrate, Haridwar in Case No. 663/2008, Rajesh Yadav v. A.K. Jain, whereby the applicant has been summoned to face the trial for the office punishable u/s 138 of the Negotiable Instruments Act (hereinafter referred to as ''the Act'').

The factual backdrop of the controversy is that the Respondent A.K. Jain purchased a piece of land near Jhabrera, Haridwar through the complainant Rajesh Yadav, and in connection with that purchase, he gave a cheque of ` 52,000/- to the complainant towards payment of commission and margin money. On 12.2.2008, the complainant presented the said cheque bearing No. "586523" dated 30.1.2008 drawn at Punjab National Bank, Model Town, Delhi before the bank for encashment, but the same was dishonourned by the bank on account of insufficient fund in the account of the drawer of the cheque. The memo of return of the said cheque unpaid by the bank was received by the complainant on 14.2.2008.

When the cheque got dishonoured, as stated above, the complainant contacted Mr. A.K. Jain, who assured him for encashment of the said cheque, if the same was reproduced in the bank. Accordingly, the complainant again submitted the same cheque on 15.2.2008 for encashment, but this time too, the cheque could not be honourned by the bank due to insufficient fund. The memo of return of the said cheque unpaid by the bank was sent to him on 19.2.2008. Thereafter the complainant sent a notice to the accused A.K. Jain on 23.2.2008, as required u/s 138(b) of the Act, which was received by Mr. Jain on 27.2.2008. But even there after the payment was not made to the complainant. Therefore, the complainant filed this complaint on 11.4.2008 in the court of Additional Chief Judicial Magistrate.

The learned Magistrate, after perusing the papers in support of the complainant as well as the statement of the complainant, took cognizance of the matter and summoned the applicant A.K. Jain vide the impugned order dated 13.5.2008. Hence, this petition.

It has been contended on behalf of the applicant that Section 138 of the Act is not applicable in the present case for the reason that the applicability of this Section can be invoked only when the matter pertains to any debt or other liability. The learned Counsel submitted that the amount, which was allegedly due for payment to the complainant Rajesh Yadav, was towards the payment of commission and the margin money, the payment of which cannot be said to be legally enforceable. This Court does not agree with the said contention of the learned Counsel for the reason that the applicability of Section 138 of the Act is attracted not only in the case of payment of debt but also for the payment towards the "other liability", and in the considered opinion of this Court, the amount of commission/margin money is well covered within the phrase "other liability".

The next contention raised on behalf of the applicant is that the complaint is time barred because the notice u/s 138(b) of the Act was sent on 23.2.2008, but nowhere it has been stated in the complaint that when this notice was got served upon the accused A.K. Jain, and as such the period of limitation will commence from 23.2.2008 itself. It is pertinent to note that the applicant A.K. Jain resides at Delhi and the notice was sent from Haridwar. So, presumption can be safely drawn that the postal department, in the normal course, would have taken at least 2-4 days'' time for service of the notice upon the applicant. Further, it will not be out of place to mention that sometimes due to lack of sense of duties, or at times, for some other reasons, the acknowledgment of the registered post, after procuring the signatures of the receiver, does not return to the sender of the post. Apart from this, the complainant Rajesh Yadav, in his counter affidavit filed before this Court, has stated that the notice was served upon the accused applicant on 27.2.2008. Be that as it may, the complainant has also filed the original acknowledgment before the court below in support of his complainant, which is apparent from the impugned summoning order and, therefore, merely on the ground that the averment regarding service of the notice on the accused does not find mention in the complaint filed by Rajesh Yadav before the court below, the impugned order of cognizance cannot be said to be vitiated. In the circumstances, if the period of limitation is reckoned from 27.2.2008, then this complainant is well within the period of limitation as prescribed under the Act.

For the reasons recorded above, this petition is devoid of merit and is liable to be dismissed. The same is dismissed accordingly. Stay order dated 13.10.2009, passed by this Court, is hereby vacated.

Registry is directed to inform the court concerned accordingly.