The legal principle established in the judgment is that the notice of demand under Section 138 of the NI Act has to be issued within the 30-day period, failing which the complaint may not be maintainable.

Mukta Gupta, J.

1. By the present petition, the Petitioner seeks quashing of the order dated 26th October, 2010 summoning the Petitioner for offence punishable under Section 138 of the Negotiable Instruments Act, 1881(in short the NI Act) and the consequential proceedings in Complaint Case No. 612/1A/11 titled as “Tarachand vs. Dheeraj Jain” pending in the Court of Metropolitan Magistrate, Saket.

2. Learned counsel for the Petitioner inter alia urges that the order of summoning and the consequential proceedings against the Petitioner are required to be quashed on the ground that legal notice was given beyond 30 days of the knowledge of dishonor of the cheque. Secondly, the complaint has been filed against the Petitioner individually though the cheque has been issued on behalf of the company and thus in the absence of the company being impleaded, the Petitioner could not have been vicariously held liable and thirdly the Court at Delhi has no territorial jurisdiction to try the complaint.

3. During the course of arguments, the scope of the present petition was confined only to the first ground that the legal notice for demand was not issued by the Complainant within 30 days of the knowledge of dishonor of the cheque.

4. Learned counsel for the Petitioner contends that as per the complaint and the affidavit of the Complainant/Respondent No.2, it has been alleged that the Complainant was shocked to know when his bankers returned three cheques unpaid on 10th July, 2010 as bounced with the remarks “insufficient funds” in the bank account of the Petitioner and two cheques bounced due to exceed arrangement. According to the Petitioner, it is the admitted case of Respondent No. 2/Complainant that the legal notice was sent through the counsel on 10th August, 2010 and the Petitioner has failed to make the outstanding payment to Respondent No. 2 even after being served with the legal notice. Reference is made to the complaint, legal notice dated 7th August, 2010 and the affidavit of Respondent No.2 annexed to the complaint where these averments have been mentioned along with the dispatch of the courier receipts and the Registered A/Ds. Reliance in this regard is placed on Shivakumar vs. Natarajan, Crl. Appeal No. 1077 of 2009 decided by the Hon’ble Supreme Court on 15th May, 2009, B.K. Sinha vs. State of Gujarat & Anr., 2008 Crl. L.J. 1230 SC and Dhananjay Johri vs. Naveen Sehgal, Crl.M.C. No. 2172/2010 decided by this Court on 24th November, 2012.

5. On a notice being issued, Respondent No. 2 has entered appearance and reply has been filed. In the reply, averments made in the complaint and the affidavit have been reiterated. Further, learned counsel for the Respondent No. 2 orally states that even if it is stated in the complaint and the affidavit filed that he came to know about dishonor of the cheque on 10th July, 2010 and issued the notice on 10th August, 2010, the Respondent would be at liberty to prove before the Court by stating that though the return memo was issued on the 10th July, 2010 but the Respondent No.2 received the same only on 12th July, 2010. It may be noted that there is no such averment in the reply. Reliance is placed on Srikant Somani and others v. Sharad Gupta, 2005 (2) JCC 138, Sunaina R. Mathani vs. NCT of Delhi, 2002(1) JCC 23, Anurag Modi vs. MSTC Ltd. 2002(1) JCC 206, Sunil Srivastava vs. Ashok Kalra, 2002(3) JCC 1909.

6. Heard learned counsels for the parties. Reply of Respondent No.2 reiterates the facts stated in the complaint and the affidavit filed before the learned Metropolitan Magistrate in support of the complaint. Thus in view of the admitted position that Respondent No.2 received the intimation of dishonor of cheque on 10th July, 2010 and issued the legal notice through his counsel on 10th August, 2010 it is to be examined whether the order of summoning is legally justified or not and whether the proceedings pursuant thereto are liable to be quashed.

7. Section 138 of the N.I. Act provides:-

“138