The judgment established that the service of notice of demand and the failure to make payment within the stipulated period are essential prerequisites for invoking penal provisions under Section 138 of the N.I. Act.

Prakash Chandra Jaiswal, J.

Heard learned counsel for the petitioner and learned A.P.P. for the State.

2. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the cognizance order dated 04.07.2014 passed by the learned ACJM, Bagaha, West Champaran, whereby the learned Magistrate has taken cognizance against the petitioner under Section 138 of the Negotiable Instruments Act (hereinafter in short referred to as 'N.I. Act').

3. It is submitted by learned counsel for the petitioner that preceding to the filing of any complaint petition against the petitioner under Section 138 of the N.I. Act a notice must have been given by the drawee to him within 30 days from the date of dishonour of the cheque and on non-compliance of the notice within 15 days of the receipt of the same, the complaint ought to have been filed but no notice has been given to him by the drawee of the cheque preceding to filing the case. It is further submitted that under Section 142 of the N.I. Act, it is the complaint which can be filed in case of dishonour of cheque and not the F.I.R. Hence, the cognizance taken by the learned lower court on the basis of the F.I.R. filed against the petitioner by the drawee of the cheque without giving notice to the petitioner is illegal and is liable to be quashed.

4. From perusal of record, it appears that Bagha P.S. Case No.104 of 2014 was instituted under Section 420/406 of the Indian Penal Code against the petitioner on the basis of written report of Manish Kumar with the allegation in succinct that the petitioner took Rs. 4,00,000/- from him on 12.12.2013 on the assurance of repayment of the same by the month of February, 2014 venting the dire need of it to save his house from auction and also issued cheque no. 313727 dated 05.03.2014 of the State Bank of India for the aforesaid amount in favour of the informant. When the informant presented the said cheque in the bank, it was dishonoured due to insufficiency of fund. Then, he met with the petitioner whereupon he assured him to deposit the sufficient money in his account and asked him to withdraw the money on 12.03.2014, whereupon he again presented the cheque on 13.13.2014 but it was again dishonoured for insufficiency of fund. Then, he approached the petitioner but he refused to pay back the money and roughed him up.

5. After investigation of the case, the I.O. submitted charge sheet and on perusing the charge sheet and the case diary, the learned lower court took cognizance of the offence under Section 138 of the N.I. Act vide impugned order.

6. Being aggrieved and dissatisfied with the impugned order of taking cognizance the petitioner has preferred this application.

7. As per Section 138 (b) and (c) of the N.I. Act, in case of dishonour of the cheque by the bank, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and 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, the complaint petition can be filed under Section 142 of the N.I. Act and as per Section 142 of the N.I. Act no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.

8. From perusal of the F.I.R., it appears that no notice to the petitioner has been given by the informant for the payment of the aforesaid amount within the stipulated period rather he has directly filed the aforesaid F.I.R. against the petitioner. Moreover from perusal of the record, it appears that the said notice was given to the petitioner by the o