The demand notice under Section 138 of the Negotiable Instruments Act must be issued within the prescribed period, and strict compliance with the statutory requirements is imperative.

By way of the present application preferred under Section 482 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the petitioner seeks quashing of the order dated 06.08.2012 passed by the learned Judicial Magistrate, 1st Class, Patna City in C.A. No. 671 of 2011 by which finding a prima facie case to be made out under Section 138 of Negotiable Instruments Act, 1881 (for short “the Act”), the petitioner has been summoned to face trial.

2. It has been contended by the learned counsel for the petitioner that from perusal of the complaint filed by the opposite party no. 2, it would be evident that the demand under the proviso (b) to section 138 of the Act was not made within the prescribed period of thirty days from the date of receipt of information by the opposite party no. 2 from the bank regarding return of the cheques as unpaid. It has been further contended that consequent upon failure to make a demand by issuance of a notice in writing within 30 days from the date of knowledge regarding the return of the cheque as unpaid, the Magistrate could not have taken cognizance of the offence under section 138 of the Act and summoned the petitioner to face trial.

3. On the other hand, learned counsel for opposite party no. 2 has contended that simply because, the notice was not issued by the complainant to the petitioner within 30 days as prescribed under the proviso (b) to section 138 of the Act, the prosecution of the petitioner cannot be held to be bad as the petitioner had issued two cheques of Indian Overseas Bank, Patna in favour of the complainant/ opposite party no. 2 of Rs.1,25,000/- each and on being presented to the bank, both the cheques got dishonored due to insufficiency of fund in the account of the petitioner. He has submitted that there is nothing in the proviso to section 138 or section 142 for that matter, to oblige the holder/payee of a dishonoured cheque to necessarily file a complaint even when he has acquired an indefeasible right to do so. In support of his submission, he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of MSR Leathers vs. S. Palaniappan & Anr., reported in (2013) 1 SCC 177.

4. I have heard respective counsel for the parties and carefully perused the record.

5. It would be evident from perusal of the complaint that two cheques of Indian Overseas Bank, Patna were issued by the petitioner in favour of the complainant of Rs.1,25,000/- each. The first cheque was issued on 15.04.2011 whereas the second cheque was issued on 28.04.2011. The complainant presented the first cheque dated 15.04.2011 for encashment in his bank, namely, I.N.G. Vaishya Bank, which got dishonoured regarding which he received an information from the bank on 18.04.2011 with a note “insufficiency of fund”. Similarly, on the presentation of the second cheque dated 28.04.2011 for encashment in the bank, it was returned to the petitioner on 29.04.2011 with a note “insufficient amount”. Thereafter, the complainant-opposite party no. 2 sent notice to the petitioner through his lawyer regarding dishonour of both the cheques on 31st May, 2011, but the petitioner failed to respond to the notice and accordingly, the complaint was filed on 13th July, 2011.

6. It would be evident from perusal of the impugned order that the complainant was examined on oath under Section 200 CrPC and in support of the complaint, three witnesses, namely, Sanjay Kumar, Ram Tahal Paswan and Raj Kumar were also examined in course of inquiry conducted under Section 202 CrPC. Thereafter, vide impugned order dated 06.08.2012 passed by the Jurisdictional Magistrate, the petitioner has been summoned to face trial for the offence punishable under Section 138 of the Act.

7. In order to appreciate the rival submissions made on behalf of the parties, I think it proper to refer to sections 138 and 142 of the Act which read as under:-

“138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn