Conclusion :
There is no power to condone delay in issuing notice as contemplated under Section 138(b) of the Act.
Decided in Favour of :
Petitioner
Petition Allowed

M.R. Shah, J.—Rule. Mr. P.P. Majmudar, learned Advocate waives service of rule on behalf of Respondent No. 2. Mr. K.T. Dave, learned APP waives service of rule on behalf of Respondent No. 1.

2. By way of this application under Section 482 of the Criminal Procedure Code, the petitioners-original accused have prayed for an appropriate order to quash and set aside the Criminal Case being No. 506/2005 pending in the Court of learned Chief Judicial Magistrate, Surendranagar under Section 138 of the Negotiable Instrument Act (‘N.I. Act’ fort short).

3. A criminal case has been filed by Respondent No. 2 original complainant in the Court of Chief Judicial Magistrate, Surendranagar against the petitioners under Section 138 read with Section 142 of the NI Act alleging inter-alia that the petitioners have given cheque No. 131423 dated 08.01.2005 for an amount of Rs. 2,37,160/-. The said cheque was deposited in the Bank and same was returned by the Bank by written memo dated 19.01.2005 with an endorsement ‘insufficient funds’. It is the case on behalf of the complainant in the complaint that the original complainant received intimation with regard to the return of the cheque vide communication dated 22.01.2005 and statutory notice was send to the accused person’s on 22.02.2005 by RPAD as well as by UPC. Said notice was received and/or served upon the accused persons on 01.03.2005 and accused persons gave evasive reply vide reply dated 11.03.2005. It is further averred in the complaint that as the petitioner’s contract work was in progress at Palanpur one day delay has been caused in giving notices. Therefore, it is requested to condone the delay of one day. Learned Chief Judicial Magistrate, Surnedrangar vide order 02.04.2005 issued summons upon the petitioners for the offences punishable under Section 138 of the NI. Act by condoning the delay of one day in issuing the notice as contemplated under Section 138(b) of the NI Act. Being aggrieved and dissatisfied with the order passed by the learned Chief Judicial Magistrate, Surendranagar in issuing the summons upon the petitioners under Section 138 of the NI Act by condoning delay of one day in issuing notice as contemplated under Section 138 of the NI Act, the petitioners-original accused have preferred the present application under Section 482 of the Cr. P.C.

4. Mr. D.K. Dave, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the learned Chief Judicial Magistrate, Surendranagar has materially erred in issuing the summons upon the petitioners by condoning the delay of one day in issuing notice as contemplated under Section 138(b) of the Act. It is submitted by Mr. Dave, learned Advocate that notice as contemplated under Section 138(b) of the NI Act was not issued within a period of one month from the date of intimation from the Bank with regard to return of the cheque, therefore, the complaint itself is not maintainable. It is further submitted by him that under the provisions of the NI Act more particularly Section 138 read with Section 142 of the NI Act, there is no power with the learned Magistrate to condone the delay in issuing notice as contemplated under Section 138 of the NI Act. It is submitted that therefore, condonation of delay of one day under Section 138 of the NI Act, is without jurisdiction and issuance of summons upon the petitioners by condoning delay of one day in issuing notice under Section 138 (b) of the NI Act, requires to be quashed and set aside. It is also further submitted that consequently the impugned complaint/criminal case itself requires to be quashed and set aside as the same is not maintainable. It is further submitted by him that provisions of NI Act more particularly Section 138 of the NI Act and time limit prescribed / stipulated in Section 138 of the NI Act are to be complied with strictly. Unless there are any powers to condone the same, no such condonation is permissible. Under the circumstances, it is reques