The main legal point established in the judgment is that a complaint under Sections 138 and 142 of the NI Act must be filed within the prescribed time limits, and failure to do so renders the complaint not maintainable.

ORDER :

1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) for the following reliefs:

“18(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;

(B) YOUR LORDSHIPS may be pleased to quash and set aside the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Special Court No.28, Ahmedabad, qua the present applicant;

(C) Pending hearing and final disposal of the application, be pleased to stay the operation, implementation and execution of the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Special Court No.28, Ahmedabad, qua the present applicant.

(D) xxxxx”

2. It averred in the application that the impugned complaint is filed against the applicant and his son, who are accused nos.1 and 2 in the complaint respectively, alleging that the complainant had business relations with the accused; as the accused needed some money to develop their business, they had taken advance/loan from the complainant of Rs.11,50,000/- and for the said purpose, one promissory note was executed by both the accused in favour of the complainant; as the complainant was inquiring about the money, the accused gave three cheques in favour of the complainant; they were deposited but they returned dishonoured; therefore the legal notice was issued but as no reply was given, the complainant filed the impugned complaint under Sections 138 and 142 of the NI Act.

3. Heard learned advocates for the parties.

4. The main contention raised by learned advocate for the applicant is that the cheque which is signed by the applicant was deposited by the complainant on 8.1.2016 which was dishonoured on 11.1.2016. The legal notice for the same is issued on 12.6.2017 i.e. after a period of more than one year from the date of dishonour of the cheque. He submitted that it is a settled legal position that the legal notice must be sent by the payee to the drawer within 30 days of the receipt of the information from the bank; therefore, the complaint filed against the applicant is not maintainable.

5. Learned advocate for the applicant further submitted that the allegations of another two cheques are not qua the applicant but they are against the son of the applicant who is accused no.2 in the complaint.

6. He, therefore, submitted that this application is required to be allowed only on this ground and therefore prays to allow this application and quash the impugned complaint qua the applicant.

7. Per contra, learned APP for respondent no.1 and learned advocate for respondent no.2 have objected this application and submitted that this Court should not exercise its powers by interfering with the proceedings of recovery of amount and the proceedings initiated under Section 138 of the Act are perfectly justified. They submitted that the applicant has not replied to the legal notice issued by the complainant before filing of the complaint and therefore this application is required to be dismissed on this ground alone.

8. I have heard learned advocates for the parties and also perused the material produced on record.

9. At the outset, the provisions of Sections 138 and 142 of the NI Act are required to be seen, which read as under:

“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 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offenc