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Gajender Sharma Versus Sree Gokulam Chit & Finance Pvt. Ltd.

2017 (1) TMI 1219 - DELHI HIGH COURT

Maintainability of the complaint case for if no legal notice was served on the petitioner as required under Section 138 of the NI Act - Held that:- There is no challenge to the finding of the learned Metropolitan Magistrate that the address C-16, Amushi Industrial Area, Nandur Gant, Lucknow, UP was a non-existent address. This was upheld by the revisional Court vide the impugned order dated 12th October, 2010. As per the complaint legal notice as required under Section 138 of the NI Act was issu .....

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M.C. 2626/2011 - Dated:- 13-1-2017 - MS. MUKTA GUPTA J. Petitioner Represented by: Mr. Bijender Singh, Ms. Vidushi, Advs. Respondent Represented by: None MUKTA GUPTA, J. (ORAL) 1. A complaint under Section 138 of the Negotiable Instruments Act (in short NI Act) was filed by the respondent against the petitioner as proprietor of Vashisht Transport Company being criminal complaint No.384/2006. In the complaint respondent alleged that the petitioner subscribed to a chit fund group and took payment .....

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was dishonored with the remark account closed vide memo dated 21st September, 2006. Thus the respondent issued a legal notice dated 16th October, 2006 under Registered AD and UPC. The notice sent through UPC had been duly served on the petitioner, however notice sent through registered AD has not been received back. Despite service of notice since the petitioner did not pay the amount nor replied, he had committed offence punishable under Section 138 NI Act. 2. The case of the petitioner is that .....

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mitted his report that there was no property with the number C-16 in the Amushi Industrial Area, Lucknow, UP, and summons could not be served. Thus the learned Metropolitan Magistrate on 21st November, 2007 directed the respondent to furnish fresh address and issued fresh summons. On the next date i.e. 2nd June, 2008 the learned Trial Court noted that the respondent had not complied with the order, however the order sheet noted presence of the accused. Learned counsel for the petitioner submits .....

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ts against the petitioner returnable for 15th November, 2010. The petitioner discovered that two other complaints were pending titled as Sri Ram Investment and Finance Company Vs. Gajender Sharma . However, no files could be located as the same were transferred. The petitioner had no knowledge of the case, however an application for inspection of the judicial file was moved when it was revealed that the address of the petitioner provided in the notice and the complaint were fictitious. 4. Challe .....

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ainst the petitioner, however declined to set aside the summoning order and quash the complaint. Relevant portion of the impugned order is as under: 6. Any how coming to the other part of the order directing issuance of NBW, the plea of the accused is that his address in the demand notice as well as in the complaint was wrongly mentined as C -18 Amushi Industrial Area, Nandur Gant, Lucknow, UP which was found to be non-existing address as per report on summons for 21.11.2007. Accused was marked .....

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uld be decided by the ld.Trial Court after recording evidence during trial. At present, it is sufficient that since accused was not served for 02.06.2008, the vakaltnama in favour of Sh.Sushil Singh Advocate is not available on the file of trial court, the bail bond of the accused was not taken, it can be presumed that he was wrongly marked present. 8. But that is not the end of the matter. Now the accused has come to know of the case. It will be in the fitness of things to direct him to appear .....

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int was not maintainable. Admittedly even as per the Trial Court Record the address on which legal notice was issued to the petitioner i.e. C16, Amushi Industrial Area, Nandur Gant, Lucknow, UP was a non-existent address. 7. When the matter came up before this Court on 10th August, 2011 this Court was pleased to stay the proceedings before the learned Trial Court till the next date of hearing which order continued. Despite service none appeared for the respondent except on few dates when the Crl .....

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d. Since learned counsel for the respondent was not appearing despite service, this Court summoned the Trial Court Record on July 12, 2016 on which a report was received that the Trial Court Record had been weeded out. Thus this Court sought for an explanation. 8. A report has been received from the District and Sessions Judge office, Headquarter according to which two persons responsible for the weeding of the record were Shri B.S. Rawat and Ms. Raj Kumari who were required to take necessary pr .....

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order dated 12th October, 2010. As per the complaint legal notice as required under Section 138 of the NI Act was issued to the petitioner at the address C-16, Amushi Industrial Area, Nandur Gant, Lucknow, UP. According to the complaint notice through UPC was duly served i.e. deemed to be served and registered AD was not received, hence it was deemed service. However, there can be no deemed service on a non-existent address. Thus, essential ingredient of Section 138 NI Act which reads as under h .....

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