The central legal point established in the judgment is the requirement for a complaint under Section 138 of the Negotiable Instruments Act to prima facie constitute an offence and the importance of establishing the intention and mala fide of the complainant in filing the complaint.

Nirmal Singh, J. : This is a petition under Section 482 Cr.P.C for quashing complaint dated 14.6.1999 (Annexure P-1) filed by the respondent under Section 138 of the Negotiable Instruments Act (for short the `Act') and the summoning order dated 15.6.1999 (Annexure P-2) passed by the learned Judicial Magistrate Ist Class, Chandigarh.

2. The facts of the case are that respondent filed a complaint under Section 138 of the Act on the ground that respondent advanced financial help to the petitioner to the tune of Rs. 1 lac in the month of January, 1999 and the petitioner in token of refund of the amount, issued two cheques to the respondent bearing Nos. 62747 dated 18.3.1999 for Rs. 10,000/- and 62748 dated 25.3.1999 for Rs. 10,000/- payable at Times Bank, Sector 7, Panchkula. It was further averred that cheque No. 62748 dated 25.3.1999was encashed and cheque No. 62747 dated 18.3.1999 was returned unpaid vide bank memo No. 10.5.1999.

3. The case of the petitioner is that respondent approached the petitioner for a loan of Rs. 10,000/- as he was known to him. Petitioner issued Cheque No. 62747 dated 18.3.1999 for Rs. 10,000/-. The respondent again approached the petitioner on 24.3.1999 and stated that cheque No. 62747 dated 18.3.1999 was misplaced or lost by him and thus another cheque for the same amount be issued, as a result of which cheque No. 62748 dated 25.3.1999 was given to the respondent by the petitioner. The petitioner sent intimation to the bank to stop the payment of cheque No. 62747 dated 18.3.1999.

4. Petitioner has pleaded that the complaint, Annexure P-1 does not disclose commission of any offence. The respondent-complainant has not disclosed intentionally and wilfully the date of issue of cheque No. 62748 in the complaint as well as in the legal notice. Even it has not been disclosed as to when the period of 15 days as envisaged under Section 138 of the Act expired, giving cause to the respondent to file a complaint before the Judicial Magistrate. The notice was never received by the petitioner. Therefore, the notice is illegal and liable to be quashed alongwith all consequent proceedings flowing therefrom.

5. The respondent filed reply and raised preliminary objection that the petition discloses the disputed question of facts which can only be determined after evidence is led in the trial Court. On merits, all the averments made in the petition was controverted.

6. It was also pleaded that notice dated 20.5.1999 issued to the petitioner is legal and valid one. The said notice was sent under the postal registered receipt and UPC dated 21.5.1999 and the petitioner instead of having 15 days time of make the payment of the cheque did not make the payment of the cheque in question. It was further pleaded that the complaint has been rightly filed.

7. Mr. Rajneesh Narula, learned counsel for the petitioner submitted that complainant has filed the complaint on the ground that cheque issued by the petitioner has bounced due to insufficient funds. He further submitted that there were sufficient funds in the account of the petitioner, when the cheque was returned by the bank so no offence is made out. He pointed out that the offence under Section 138 of the Negotiable Instruments Act is made out if there are insufficient funds in the account of the person who issued the cheque. He further submitted that notice Annexure P/3 alleged to have been served upon the petitioner, was never served upon the petitioner. He contended that the respondent has pleaded in the complaint that the cheque was returned unpaid on 18.5.1999 that the payment was stopped by drawer whereas in the notice Annexure P-3 served upon the petitioner, a contradictory stand has been taken that the cheque was returned unpaid due to insufficient funds. The payment has been stopped by the petitioner, as the petitioner in lieu of cheque No. 62747 dated 18.3.1999 has given another cheque dated 25.3.1999 which was presented in the bank on 26.3.1999. He point