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TMI Blog2019 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... in forgoing paragraphs this Court is of the opinion that no interference is called for in the order of issuance of process. Hence, application stands rejected. Application dismissed. - CRIMINAL APPLICATION NO. 702 OF 2019 - - - Dated:- 19-7-2019 - S.S. SHINDE, J. Mr. S.V. Marwadi i/by. Mr. N.M. Nadar for the Applicant. Mrs. S.R. Agarkar, APP for Respondent State. Mr. Mayhank Bagla i/by. Mr. Jainish Jain for Respondent No. 1. P.C.: 1. This application takes an exception to the order passed by the 6th Judicial Magistrate First Class, Nashik (for short said Court ) on 09th May 2019 thereby issuing process against applicant for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short the said Act ). 2. The present applicant is an accused in the Summary Case No. 2373/2018 and first Respondent is original complainant before the said Court. It was stated in the complaint that, complainant is an agriculturist and resident of Kasabe Vani, Taluka Dindori, District Nashik. The accused and the complainant were known to each other and has had good acquaintances and were friends since long. It is alleged that, the Accused me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collect and to receive the said notices, as he was aware of the contents of the said notices. It is pertinent to note that the said notices sent by the complainant under his own signature. The complainant had also written his name on the said covers as the sender. The cover of notices sent on the residential address of the accused was returned and delivered to the complainant on 15.02.2018. The cover of notices sent on the business address of the accused was returned and delivered to the complainant on 06.02.2018. Despite having knowledge of the said notices, the Accused either failed to reply the said notices or / and neglected to make payment of the said cheque to the complainant. In the circumstances mentioned herein above the accused has not disputed his liability to make the payment of the said cheque as he has not replied the said notice. 6. It was alleged that, the accused has committed the offence under the provisions of Chapter XVII of the said act, which provides for punishment with an imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. 7. For the sake of convenience and meetin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent himself. The notice dated 19.01.2018 was sent at the residential address of the applicant and was returned to the first respondent on 15th February 2018 and the applicant herein was intimated the said notice on 27.01.2018. 12. It is submitted that, the averments made in the complaint are false, in as much as it is stated in the complaint that, the applicant has not replied to the statutory notice issued by the first respondent. The first Respondent has not produced as single document to show as to when and where alleged transaction took place and which documents were executed with regard to the said transaction. The first Respondent has failed to disclose his source of income and financial capacity to give an alleged loan of ₹ 30,00,000/ by cash to the applicants. It is submitted that the statement of bank Account of the applicant will show that, the said cheque was part of the cheque book issued on 09.12.2011. The bank statement will also show that since there was a change in the format of the cheque hence the bank had issued new cheque book. Hence the present cheque being issued as alleged is not possible. The copy of the new cheque is also annexed to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to how concept of E mail works. It is also aruged that first Respondent did not possesses any E mail I'd and is not comfortable and / or convergent to usage of E mail I'd. However, the friend of first Respondent sought permission of first Respondent to create an E mail I'd and once again served the applicant a copy of the notice dated 19.01.2018 upon the applicant. 15. It is submitted that, the friend of the first Respondent created a E mail I'd on behalf of the Respondent No. 1 and addressed a copy of the notice under Section 138 of the said Act to the applicant. It is submitted that, since Respondent No. 1 was not convergent with the technology, he could not access the E mail I'd created by his friend at his instance. It is submitted that the Respondent No. 1 did not possess any smartphone. It is submitted that since first Respondent is not convergent with technological advancement and how to operate the E mail, he sent notices to the applicant vide post on residential as well as business address of the applicant. The alleged reply of the applicant on 08.02.2018 if considered, there exist nothing detrimental to the case of first Respondent made out before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned by the first respondent in reply that the notice issued on business address was received on 06.02.2018 and notice sent at residential address was received on 15.02.2018. Thereafter, complaint was filed on 14th March 2018. Upon plain reading of aforesaid dates prima facie it appears that the date of return of the notice sent at residential address is 15th February 2018 and complaint is filed on 14th March 2018. Therefore, according to complainant complaint is filed within time. It is the contention of the applicant that said notice was replied through email on 27th January 2018 and therefore, the complaint filed by the first Respondent is not within time. The another submissions is that when the notice was returned from business address on 06.02.2018, the complaint should have been filed within 1 month. It appears that to find out whether the complaint filed by the first Respondent was within limitation or otherwise, appreciation of documents is necessary. First respondent has stated that he has no knowledge, how to access the email and also he does not possess the smartphone. Be that as it may, it appears from the material on record that the trial Court will have to find out a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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