Pankaj Naqvi ORDER
Pankaj Naqvi, J.
Heard Ms. Swati Agrawal, learned counsel for the applicant and the learned A.G.A.
This application under Section 482 Cr.P.C. Cr.P.C. challenges the order dated 24.4.2015 passed by the Addl. Chief Judicial Magistrate (Court No. 3), Gorakhpur in Complaint Case No. 4989/2011, summoning the applicant under Section 138 of the N.I. Act.
1. The case set up in the complaint of O.P. No. 2 is that the applicant issued a cheque dated 8.2.2011 for Rs. 32 lacs in favour of the complainant/O.P. No. 2, which upon presentation before her bankers, was reported to be dishonoured, followed by a registered statutory notice dated 28.4.2011, which went uncomplied with, hence the complaint was filed on 21.6.2011, with the affidavit of O.P. No. 2 and that of his witness and the registered notice dated 28.4.2011. The learned Magistrate on 24.4.2015 relying upon the complaint, statements and other materials, prima facie found the applicant involved in the commission of an offence under Section 138 of the N.I. Act, proceeded to summon him.
2. It is submitted by the learned counsel for the applicant that in the absence of any disclosure in the complaint as regards the date of service of notice, the complaint did not disclose any cause of action, thus the same was not maintainable. She also submitted that the complaint was barred by limitation.
3. Learned A.G.A. would submit that the complaint along with appended materials did disclose sufficient cause of action. He, on the strength of the judgment of the Apex Court in the case of Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, MANU/SC/0630/2014 : 2014 (12) SCC 685, contends that once a registered notice is sent under Proviso (b) to Section 138 of the Act to the drawer of the cheque, presumption of due service of the notice would stand attracted both under sub-section 114 of the Evidence Act and under Section 27 of the General Clauses Act and it is not the requirement of law to state in the complaint that the notice was served on a particular date as notice is deemed to have been served with the addressee or he is deemed to have the knowledge of the notice unless and until contrary is proved at the stage of evidence. He also submits that the complaint is not barred by limitation.
4. The Proviso (b) & (c) appended to Section 138 of the Act lays down the conditions which are to be complied with before a complaint under Section 138 of the Act could be filed, which are quoted hereunder:--
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Provided that nothing contained in this section shall apply unless--
(a) ..........
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(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 t........