The legal notice of demand must be issued within 30 days from the date of the return memo for a complaint under Section 138 of the Negotiable Instruments Act, 1881 to be maintainable.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present proceedings are instituted under Section 482 Cr.P.C. seeking quashing of the Complaint Case No. 696/2017 filed under Section 138 of Negotiable Instruments Act, 1881.

2. Vide order 01.04.2019, it was noted that the complainant/respondent No. 2 was duly served. However, noting that neither the complainant nor his counsel appeared, he remained unrepresented and vide order dated 26.09.2019, his right to file reply was closed.

3. Learned counsel for the petitioner submitted that as per the case of the complainant, the petitioner was given cash loan of Rs. 50,000/- on 20.04.2016 which was promised to be returned in eight months. After eight months, the complainant approached the petitioner who paid back Rs. 19,500/- and sought time of one month to pay the balance amount. In December 2016, the petitioner issued a cheque bearing No. 893122 dated 30.12.2016 drawn on Dena Bank, Gandhi Nagar, for Rs. 30,500/- which on presentation, was dishonoured through return memo dated 02.01.2017 with remarks “funds insufficient.” The complainant sent a legal notice dated 06.02.2017 vide postal speed post No. ED-242453767-IN and registered postal receipt no. RD-638849549-IN dated 06.02.2017.

4. Learned counsel for the petitioner contended that the proceedings pending before the trial court need to be quashed as the legal notice was sent beyond 30 days of knowledge of the dishonour of cheque. It was contended that no offence under Section 138 of the NI Act is made out as clause (b) of the proviso to Section 138 NI Act is not proved. In support of the submission, reliance was placed on the decisions in Kamlesh Kumar vs. State of Bihar and Another, (2014) 2 SCC 424 and Dheeraj Jain vs. State and Another, 2012 SCC Online Del 1687.

5. It was further contended that the present complaint was rather filed to pressurise the petitioner to withdraw his complaint filed before the concerned Authority under Delhi Shops and Establishment Act, 1954 for withholding the petitioner’s salary as the petitioner was an employee of the complainant. The complainant has deposited and withdrawn cash amounts in the account of the petitioner by misusing his cheque books for which the petitioner had filed a complaint dated 15.12.2016 with the Branch Manager of the bank.

6. In Kamlesh Kumar (supra), Supreme Court held as under:-

“15. It is, thus, apparent that he received the information about the dishonor of the cheque on 10.11.2008 itself. However, he did not send the legal notice within 30 days therefrom. We, thus, find that the complaint filed by him was not maintainable as it was filed without satisfying all the three conditions laid down in Section 138 of the N.I. Act as explained in para 12 of the judgment in the case of MSR Leathers, extracted above.”

7. In Sivakumar vs. Natrajan, (2009) 13 SCC 623, the Supreme Court re-affirmed the following observations made in Harman Electronics (P) Ltd. vs. National Panasonic India (P) Ltd. (2009) 1 SCC 720:-

“13. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refus