JUDGMENT (Oral)

1. By way of present petition filed under Section 482 Cr.P.C., the petitioner seeks setting aside of the order dated 24.11.2022 passed by learned M.M. (NI Act), Digital Court-03, South East District, Saket, vide which he has been summoned to face trial in Complaint Case NI Act 4900/2022, arising out of proceedings initiated under Sections 138 of the Negotiable Instruments Act, 1881 (hereafter, `NI Act').

2. The only contention canvassed on behalf of the petitioner is that legal notice was not issued to him within the period of 30 days as prescribed in Section 138 proviso (b), NI Act. In support of his submissions that the said period is not extendable, learned counsel for the petitioner has referred to Section 138 of the NI Act as well as demand notice and the pre-summoning evidence placed on record.

3. Learned counsel for the respondent No.2 however, has contested the petition by submitting that the issue as to whether the demand notice was issued within or beyond the period of 30 days is a matter of trial.

4. Briefly stated, the facts necessary for the consideration of the present petition are that in its complaint, complainant/respondent No. 2 has alleged that the petitioner alongwith his friend Sunder approached respondent No.2 for providing financial assistance to Sunder for the purchase of a vehicle. The petitioner introduced himself as a guarantor and on his request, respondent No.2 advanced loan to Sunder vide Loan-cum-Hypothecation Agreement dated 19.04.2016. However, Sunder, the borrower defaulted in repaying the loan amount and when respondent No.2 approached the petitioner and informed him of the said default, petitioner issued the subject cheque dated 10.03.2022 in favour of respondent No.2 towards discharge of partial liability of his friend/principal borrower. The said cheque, when presented for encashment, was dishonoured for the reason "payment stopped by the drawer" vide return memo dated 16.03.2022. Subsequently, a legal notice was issued through speed post on 16.04.2022 to the petitioner however, upon petitioner's failure to pay the amount under the cheque, the said criminal complaint came to be filed.

5. Before proceeding further, this Court deems it apposite to refer proviso (b) of Section 138 of NI Act, which reads as under:

"(b) 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;"

6. A reading of the aforesaid provisions would show that on receipt of information about the dishonour, complainant is mandatorily required to issue a demand notice within 30 days as stipulated. The period of 30 days is sacrosanct and unextendible. A complaint filed without complying with the three conditions stipulated under Section 138, is not maintainable. To appreciate the contention raised by the petitioner, the stand taken by respondent No.2 in its complaint, is extracted below:

"7. That on the assurance of the accused, the complainant present the above said Cheque for encashment with his banker, AXIS BANK LTD. Branch Mahan Co-operative Industrial Estate, Mathura Road, New Delhi-110044 in A/c. No.919020037480449 on dated 15.03.2022 for encashment but the above said Cheque issued to the complainant has been returned back unpaid by accused banker with the reasons "PAYMENT STOPPED BY DRAWER". vide Bank return memo dated 16.03.2022.

8. That immediately on 16.03.2022, the complainant approach to the accused on telephonic call and inform him about the bouncing of Cheque issued by accused to the complainant and inform him that the reason for the return the above said Cheque is "PAYMENT STOPPED BY THE DRAWER". The Complainant demand from the accused to pay the Cheque amount to the complainant client but the accused straight way refused to pay the said Cheque amount to t