Jharkhand High Court
Pawan Kumar Agrawal vs The State Of Jharkhand on 18 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 972 of 2016
Pawan Kumar Agrawal, s/o Late Mohan Lal Agrawal, Proprietor of M/s
Bharat Steel, Pagmil Road, Indrapuri Chowk, PS-Sadar, PO & District-
Hazaribagh .... . Petitioner
Versus
1.The State of Jharkhand
2. Sanjay Sahay @ Bablu, s/o Dr. Sachidanand Sahay, r/o Sheopuri, PS-
Sadar, PO & District-Hazaribagh ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Prabhat Kumar Sinha, Advocate
For the State : Mrs. Nehala Sharmin, APP
For O.P No.2 : Mr. Prabhas Kumar, Advocate
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th
Order No. 03 /Dated: 18 October, 2021
Complaint Case No.1246 of 2007 corresponding to T.R No.2A/2015
started on the basis of a written complaint dated 09 th August 2007 filed
against Manish Kumar Mallik, Sanjay Sahay @ Bablu and Rajesh Soni on
the allegation that the account payee cheque bearing number 240527 dated
11th July 2007 for a sum of Rs.3,00,000/- issued under the signature of these
accused persons was returned unpaid due to insufficient fund.
2. Manish Kumar Mallik and Sanjay Sahay were found guilty under
section 138 of the Negotiable Instruments Act and sentenced to RI for one
year and with a direction to both the accused persons to pay compensation
of Rs.1,50,000/- each to the complainant.
3. From paragraph no.16 of the judgment in T.R No.2A/2015, it appears
that the learned trial Judge raised presumption under section 139 of the
Negotiable Instruments Act and held that the complainant received cheque
bearing number 240527 in discharge of legal debt or any liability as the
accused persons failed to rebut the presumption raised in terms of
section 118 of the Negotiable Instruments Act.
4. The appellate Court held that it was not proved that legal notice dated
20th July 2007 issued by the complainant was validly served upon the
accused persons.
5. The endorsement of the postman dated 21st July 2007 vide Ext.5
records that on 21st July 2007 when he went at the address given by the
complainant to serve the legal notice dated 20 th July 2007 the accused
persons were not found there rather they had left the place long back. I find
that the learned trial Judge raised a presumption under section 27 of the
General Clauses Act against Manish Kumar Mallik on the ground that his
address given on the postal cover was correct and though it was returned
unserved because he was not found at the place of his residence it shall be
deemed that he was validly served. It further appears that complaint case
was filed on 09th August 2007 and even assuming that Manish Kumar Mallik
was served on 26th July 2007 the complainant could have instituted the
complaint case only after affording clear 15 days to him for paying the
cheque amount. The cause of action for filing the complaint case therefore
occurred for the first time on 11 th August 2007 and, therefore, the complaint
case was instituted prematurely.
6. At this stage, Mr. Prabhat Kumar Sinha, the learned counsel for the
petitioner seeks permission to withdraw this criminal revision petition with a
liberty to the petitioner to avail remedy, if any, as available to the
complainant in law.
7. Accordingly, Criminal Revision No.972 of 2016 is dismissed as
withdrawn with the liberty as prayed for on behalf of the petitioner.
(Shree Chandrashekhar, J.)
R.K.
