IMPORTANT POINT
In absence of date of service of notice, demanding payment of cheque amount, no offence is made out under Section 138 of N. I. Act.

D.R. Azad, J.—The present criminal revision has been preferred against the judgment and order dated 18.12.2005 passed by the Additional Chief Metropolitan Magistrate-II Kanpur Nagar in Criminal Complaint Case No.7228 of 2005 (M/s. M.R. Traders through proprietor Nand Kumar Bhatia v. M/s. Kanhaiya Lal & sons through its Proprietor Kanhiaya Lal) under Section 138 of the Negotiable Instruments Act, Police Station Collector Ganj, District Kanpur Nagar, whereby process has been issued against the revisionists to fetch the prosecution.

2. The brief facts of the case is that the Opposite Party No.2 supplied goods to the revisionists for a sum of Rs.l,18,809.20 through bill No.15701 dated 4.3.2005 in respect of which revisionists assured to pay the entire amount through cheque. Revisionists issued a cheque No.506252 dated 12.5.2005 of lCICI Bank Ltd. for a sum of Rs.l,18,809.20. The said cheque has been dishonoured due to insufficient of funds. Opposite Party No.2 thereafter on 22.8.2005 filed a criminal complaint being case No.7228 of 2005 against the revisionists in the court of Additional Chief Metropolitan Magistrate-II Kanpur Nagar under Section 138 of Negotiable Instruments Act. The learned Magistrate recorded the statement of the complainant under Section 200 Cr.P.C. on 3.9.2005. The learned Magistrate vide order dated 18.10.2005 issued the process against the revisionists for summon and to face the prosecution under Section 138 of Negotiable Instruments Act, which is impugned in the present criminal revision.

3. I have heard learned counsel for the revisionists, learned counsel for the complainant and learned AGA and also perused the materials available on record.

4. Learned counsel for the revisionists contended that the notice of demand dated 15.7.2005 was neither sent by the Opposite Party No.2 to the revisionists nor the same has been served upon the revisionists till date, nor any specific date of service of demand of notice has been mentioned in the complaint by the Opposite Party No.2, as such, the entire criminal proceedings against the revisionists arising out of the said complaint is not maintainable. It is further contended by the learned counsel for the applicant that since the Opposite Party No.2 nowhere in the complaint has mentioned about the specific date of service of his demand notice upon the revisionists thus, the said criminal complaint filed by the Opposite Party No.2 against the revisionists is an abuse of the process of court being not maintainable.”

5. It is further argued by the learned counsel for the revisionists that the complaint filed by the Opposite Party No.2 against the revisionists is time barred as the same has not been filed within time as provided under the Act, thus, the same is not maintainable.

6. On the other hand, learned counsel for the Opposite Party and the learned AGA denied that the notice was not served on the revisionists and the complaint is not time barred. They further argued that since the contention raised at the bar by the applicant are factual and relates to the merit of the case, therefore, the prosecution must be allowed to proceed against the applicant.

7. For appreciating the arguments of the learned counsel for the parties, I would like to reproduce Section 138 of the Negotiable Instruments Act, the same is being quoted below:

“138 Dishonour of cheque for insufficiency, etc., of found in the account—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to an