IMPORTANT POINT
Complaint for offence u/s 138 of Negotiable Instruments Act cannot be dismissed merely on ground that demand after dishonour of cheque was is sued as a letter & period for payment of amount was restricted to 11.days.

N.G. Nandi, J. - This Criminal Revision Application under section 397 read with section 401 of the Code of Criminal Procedure is directed against and dismissing the complaint under section 138(b) of the Negotiable Instruments Act (hereinafter referred to as "the Act").

2. It is suggested from the record of the court below that complaint under section 138 of the Act came to be filed by complainant German Remedies Limited, a company, wherein accused Nos. 1 to 3 were summoned by the Court of learned Metropolitan Magistrate for the offence punishable under section 138 of the Act. The accused gave an application under section 245 read with sections 258 and 259 Cr. P.C. for discharge. It is contended before the trial court that the summoning of the accused was not justified as there was no legal notice after the dishonour of the cheques requiring the drawer of the cheques to make the payment in respect of dishonoured cheques within 15 days and that the alleged notice dated 14-9-1993 is just a business letter requiring the accused person to make the payment against the outstanding bills; that' the alleged notice is not a notice within the meaning of section 138 of the Act. The learned Magistrate accepting the contention of the accused, granted the application and dismissed the complaint u/s 138 of the Act, discharged the accused. It is this order which is sought to be revised in this petition by the complainant.

3. It is submitted by Mr. Raina, learned counsel for the respondents accused persons, that in notice the requirements of section 138(b)(c) of the Act have not been complied with.

4. Section 138 of the Act deals with the dishonour of the cheque for insufficiency etc. of the funds in the account. Clause (b) thereof provides that "the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of he receipt of information by him from the bank regarding the return of the cheque as unpaid. Clause (c) provides that "the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice".

In the instant case, it is not disputed that the -cheques issued by the accused returned dishonoured on account of insufficiency of funds. It is also not in dispute that till today the amounts of the dishonoured cheques have not been paid by the accused to the complainant.

5. Perusal' of the record of the trial court suggests the complaint under section 138 of the Act having been filed on 28-10-1993 in the Court of the learned Additional Chief Metropolitan Magistrate, New Delhi. In Para 3 thereof, it is stated that accused No.1, through its two directors, Accused Nos. 2 and 3, had issued eight cheques totalling to Rs. 25, 99, 300.76 which were drawn on Canara Bank, Gole Market, New Delhi. Then para 3 proceeds to state the number of cheques, dates and the amounts. It is further alleged in the complaint that the abovesaid cheques were deposited by the complainant company at its State Bank of India, Darya Ganj branch, New Delhi for its collection; that the banker of the complainant company sent the cheques for realisation; that the said cheques were returned unpaid by the Canara Bank, Gole Market, New Delhi, with the endorsement "NOT ARRANGED FOR/EXCEEDSARRANGEMENT"; that the complainant company received communication from their banker in the month of September, 1993 that the cheques have been returned unpaid as aforestated.

In para 5, it is alleged that the complainant company, vide their letter dated 14-9-1993 wrote to the accused persons demanding payment of the entire amount which was due i.e., Rs. 25, 99, 300.76; that the accused persons were further informed that on their failure to pay the outstanding amount, legal action would be taken against them.

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