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IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

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Cr. Appeal No. 532 of 2010

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Reserved On : 2.4.2019

Decided on: 30.4.2019

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Praveen Kumar …..Petitioner.
Versus
Atma Ram rt ….Respondent.
Coram:
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The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Yes.
Whether approved for reporting?1
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For the Petitioner: Mr. Pushpinder Verma, Advocate, vice

counsel.
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For the Respondent: Mr. Vikram Thakur, Advocate.

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Sureshwar Thakur, J
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The instant appeal is directed, against, the

impugned judgment, of, 25.6.2010, rendered by the learned

Judicial Magistrate, Ist Class, Court No.1, Palampur, District

Kangra, H.P. in Criminal Complaint No. 129/III/2009,

whereby the respondent herein (for short ‘accused’), stood

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Whether reporters of the local papers may be allowed to see the judgment?

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acquitted, by the learned trial Court, for, an offence

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punishable under, Section 138 of the Negotiable Instrument

Act (for short “NI Act”).

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2. Cheque bearing CW-1/A, carrying therein a sum of

Rs. 2,50,000/-, stood issued by the accused, vis-a-vis, the

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complainant. The afore cheque, upon its presentation, before
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the Bank concerned, stood, as divulged by Ex. CW-1/E, hence
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declined, for want of sufficient funds, occurring in

contemporaneity vis-a-vis its presentation, before the bank

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concerned, for being honored. Subsequently, on 18.4.2009, the

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complainant through his counsel, issued, a, statutory notice,

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borne in Ex. CW-1/C, upon, the accused, detailing therein the

afore factum. The notice was sent through registered AD, and,
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the postman concerned, made an endorsement therein, qua

the addressee refusing to accept it.

3. The complaint was filed on 12.5.2009. The apt

statutory notice, is, contemplated in clause (c) of the proviso

appended to Section 138 of Negotiable Instruments Act (for

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short “ NI Act”), provisions whereof stand extracted

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hereinafter, qua hence, it, being imperatively served upon the

accused, (i) and, only upon elapse of 15 days, from, valid

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service of the statutory notice upon the addressee, (ii)

thereupon the complainant being entitled to institute, a,

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validly constituted, and, a maintainable complaint, before the

Magistrate concerned.
rt However, the mandate of the afore
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clause (c) of Section 138 of the NI Act, is palpably infringed

hereat, (iii) given, the peremptory mandate, borne therein, qua

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the apt statutory notice, being imperatively proven to be

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received by the addressee, remaining contravened, (iv) the

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afore inference is both expressly besides explicitly, acquired

hence by the coinage “within 15 days of the receipt of the said

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notice” occurring in clause (c) of section 138 of NI Act.

“(c) the drawer of such cheque fails to make

the payment of the said amount of money to
the payee or, as the case may be, to the holder
in due course of the cheque, within fifteen
days of the receipt of the said notice.”

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4. Moreso, when the statutory coinage “receipt”

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occurring therein, cannot hold any signification, than qua, the

statute explicitly contemplating qua it being imperative for

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the addressee, being validly served, and, contrarily when

hereat no valid service of notice, is, made upon the noticee,

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rather an endorsement is occurring therein, qua his refusing
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to accept the notice, and, when no provisions analogous to the
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apt provisions borne in the Code of Civil Procedure, wherein it

stands contemplated qua upon refusal of the litigant

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concerned, to, accept summons, he is deemed to be statutorily

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served, rather exist in the NI Act, (i) thereupon, for want of

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any provisions in the NI Act bearing likeness or similarity

therewith, hence, the complainant, cannot derive any leverage

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therefrom, to, dehors, effectuation of, valid service, being made

upon the noticee, hence institute the extant complaint, nor,

thereupon, the order of acquittal recorded by the learned trial

Court is to be concluded to be either invalid or unsustainable,

contrarily the complaint is to be held to be premature. In

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making the afore conclusion, this Court derive strength from a

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judgment reported in (2014) 10 SCC, titled as Yogendra

Pratap Singh vs. Savitri Pandey.

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In view of the above, the present appeal stands

dismissed, as, also the pending applications if any.

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30.4.2019. rt ( Sureshwar Thakur ),
(priti) Judge.
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