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2006 (9) TMI 617 - HC - Indian LawsDishonor of Cheque u/s 138 of Negotiable Instruments Act (''N.I. Act') - valid service of demand notice or not - No date of service on notice is mentioned - demanding re-payment of cheque money - presumption u/s 114 of Evidence Act r/w Section 27 of The General Clauses Act of service of notice - Challenged the Summon order - HELD THAT:- As a fact, neither in the-complaint, nor in statement u/s 200 CrPC nor in the counter affidavit any date of service on notice demanding re-payment of cheque money from the applicants is mentioned. No document was also appended along with the complaint so as to indicate the said date. Even during the course of argument, the counsel for the respondent complainant could not point out the date of service of such notice. Thus, in the total absence of date of service of notice demanding payment of the cheque amount, no offence is made out against the applicants. Moreover, it cannot be said that any such notice was ever served on the applicants and consequently fifteen days period for making the payment of the cheque money can not be counted and unless that is done no offence is made out against the applicants. The contention of respondent complainant that the service is to be presumed also can not be accepted because Section 27 of General Clauses does not takes into it's purview service by private courier. Consequently, the contention of the learned Counsel for the applicant that the service should be presumed in the present case cannot be accepted as it does not hold good on the provision of the statute itself and has to be rejected. Resultantly, the submission of the counsel for the applicant that in the present case no offence is made out holds good and deserves to be accepted and I hold so. Summing up from the discussions made above, since, no offence u/s 138 of N.I. Act is made out against the applicants, in absence of date of service of notice of demand on them their summoning order passed by the Special Judicial Magistrate, in complaint case Rajbir Singh v. Deepak Kumar and Anr., u/s 138 of N.I. Act, cannot be allowed to stand and has to be quashed and I order so. Resultantly, this Criminal Miscellaneous Application is allowed. The summoning order against the applicants is quashed.
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