TMI Blog2020 (1) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... op back he had made complaint or prior to that. Accordingly even if he made complaint after accepting of the notice from the post office with note 'left', he could have filed such complaint only after expiry of 15 days but it is not the case here. Secondly if he considers that service of notice was effected then in all probability complaint should have been filed only after expiry of 15 days, and the date of service would have been clearly mentioned in the complaint. In the absence of any such mention in complaint itself, no inference of effective service and requirement of 15 days prior notice can be presumed to have been complied with. Application allowed. - Application U/s 482 No. 98 of 2020 - - - Dated:- 31-1-2020 - M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, pre-condition as contained under Section 138 N.I. Act has remained uncomplied with and, therefore according to him, proceedings are clearly not maintainable under the Negotiable Instruments Act, 1881. Learned counsel for the applicant has relied upon the judgment of the Apex Court in the Case of Shakti Travel and Tours v. State of Bihar reported in 2002 (9) SCC 415, wherein the Supreme Court has very categorically held that complaint is maintainable under Section 138 of Negotiable Instrument Act, only when it is filed after due service of notice as contemplated under Section 138 N.I. Act. Learned counsel for the applicant has further placed reliance upon the judgment of Single Judge of this Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses Act does not take into its purview service by private courier. For a proper understanding of this submission Section 27 of the General Clauses Act is quoted below:-- Meaning of Service by post--Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is made out holds good and deserves to be accepted and I hold so. Learned counsel for the applicant has also placed reliance upon the judgment of this Bench in the case of Nawab Singh Vs. State of U.P. Another (Application U/S 482 No. 2604 of 2020, decided on 21st January, 2020). Countering the argument, learned A.G.A. has submitted that condition of service of notice virtually stands complied with. In support of his submission, the learned A.G.A. has placed relinace upon the judgment of Single Judge of this Court in the case of Chand Mohd v. State of U.P, reported in Laws (All) 2017 5 308. In paragraph nos. 19 and 20, the learned Single Judge has held thus: 19. Perusal of Section 27 of the General Clauses Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayal Gupta (DR) and others v. State of Maharashtra22 (Paras 53 to 56 ). Banking upon the judgment, learned counsel for the applicant submits that the complaint was ultimately maintainable and it cannot be said that mandatory requirement of law was not fulfilled. I have considered the submissions of the learned counsel for the applicant and the learned A.G.A. for the State and have gone through the records of the present application as well as the impugned order. Normally, this Court would have issued notice to opposite party no.2 to file counter affidavit but in view of mutual consent of learned counsel for the applicant and learned A.G.A. as recorded above, no purpose would be served by keeping the present application pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant stands fully covered by the judgment of the Apex Court in the case Shakti Travel and Tours (supra) and in the case of Deepak Kumar and Another (supra). So far judgment relied upon by counsel for the respondent is concerned, that refers to the word 'service', it cannot be doubted that in case if the service is refused or service by absence could not be made effective, service could be deemed sufficient as per law, but in any case 15 days time prescribed by law should always be fulfilled to maintain complaint under section 138 of N.I.Act, 1881, which is lacking in the present case. In view of above, the application under Section 482 Cr.P.C. stands allowed and the proceedings are quashed. It is however alw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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