IMPORTANT POINT
The legal point established is that the liability under Section 138 of the NI Act arises only when the drawer receives a notice and fails to make the payment within the time provided by the Statute.

JUDGMENT (Oral)

1. By way of present petitions filed under Section 482 Cr.P.C., the petitioner seeks quashing of the Complaint Case Nos. 9213/2019 and 9214/2019 filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `NI Act') both titled as `Santosh Devi v. M/s. Synergy Earth Movers' pending before learned Metropolitan Magistrate, (North-West), District Court Rohini, Delhi.

2. Considering that the facts and the parties are common as well as the fact that the learned counsels for the parties have also addressed common submissions, both the cases are taken up together and disposed of vide this common judgment.

3. Briefly, the facts as available from the material placed on record are that the respondent has alleged that M/s Synergy Earth Movers is a proprietorship firm and the petitioner is the director/proprietor of the said firm, looking after its day-to-day affairs. Further, it is alleged that the petitioner approached the respondent through an offer letter providing machinery for a project on Yamuna Expressway, and the same was accepted by the respondent. As per the terms of the offer letter, payment would be made by M/s Synergy Earth Movers and petitioner on the basis of the bills raised by the respondent. In response to the bills raised by the respondent, following 3 cheques were issued:

a. Cheque No.-365721, dated 20.08.2009, amounting to Rs.1,40,000/-, SBI Bank, Branch- Dankaur,

b. Cheque No.-365727, dated 13.10.2009, amounting to Rs. 1,00,000/-, SBI Bank, Branch- Dankaur and

c. Cheque No.-365728, dated 20.09.2009, amounting to Rs. 1,00,000/-, SBI Bank, Branch- Dankaur.

4. The aforesaid cheques, when presented for encashment, were dishonored with the remarks `insufficient funds' vide a return memo dated 06.03.2010, leading to filing of the complaint in question. It was also alleged that though statutory notice was issued asking the petitioner s to make good the payment however, upon his failure to pay, the complaints in question were filed before the trial court. While the first complaint case relates to Cheque No. 365721, the second complaint case relates to the other two cheques bearing No.365727 and No.365728. The petitioner has raised multifold contentions. The first contention relates to limitation inasmuch as the demand notice was issued beyond the statutory period of 30 days. Secondly, the petitioner is not signatory/author of the subject cheque, the same having been being issued by one Smt. Shalley, the sole proprietor of the firm. The cheques were also not issued from any joint account.

5. Learned counsel for the respondent, on the other hand, while opposing the petition has contended that the petitioner while raising invoices, has admitted himself to be the proprietor of the firm. In his bail application, he had taken a stand that the cheque book from which the subject cheques were issued, belonged to him and that the same was lost. At the time of accused evidence, the defence taken was that the cheque was issued as a security cheque. The petitioner had further approached the Allahabad High Court seeking compounding of the offence. All these pleas taken at different times by the petitioner are self-contradictory and thus would require trial. It is submitted that requirement to issue of notice was dispensed with in terms of Section 98, NI Act.

6. The cheques were presented for encashment in January, 2010 when they were dishonoured through return memo dated 03.02.2010. Concededly, a legal notice was issued on 18.03.2010. For appreciation of contention of limitation, Section 138 of the NI Act is extracted hereunder:

"138. Dishonour of cheque for insufficiency, etc., of funds 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 sta