JUDGMENT :

1. The petitioners are accused in Criminal Complaint No. 3793/2021 along with four others. The petitioners are aggrieved by the order of cognizance and summoning the accused dated 11.11.2021 passed in the aforesaid complaint case by learned Special Metropolitan Magistrate (N.I. Act Cases) No.12, Jaipur Mahanagar-II. The complaint was filed for offences under Section 138 of the Negotiable Instruments Act (in short “N.I. Act) as well as 420 of the IPC by respondent No.2, however cognizance has been taken only for offence under Section 138 of the N.I. Act.

2. As per complaint petition, the complainant Amcur Power Tech Private Ltd. and petitioner M/s Bengal Tools Limited entered into an agreement on 30.5.2015 wherein the complainant company agreed to construct transmission line of electricity as per the requirement of the petitioner company. Out of total Rs. sixteen crore seven lacs seventy two thousand seven hundred sixty eight, the petitioner company paid Rs. thirteen crorer seventy eight lacs thirty one thousand three hundred and seventy two to the complainant for work done. In respect of the remaining amount, after due deliberations between the parties, it was decided that only one crore forty five lacs is payable. The decision took place on 26.8.2020. Thereafter the petitioner company made payment of Rs. forty five lacs through RTGS and for payment of remaining one crore, ten cheques of ten lacs each were issued. Five were honoured and remaining five detailed in the complaint petition got dishonoured as payment was stopped by the petitioner company. Out of five dishonoured cheques two were reported dishonoured on 9.4.2021 and three were reported dishonoured on 2.7.2021. On 21.8.2021, the complainant company sent legal notice as required under Section 138 proviso (b) of the N.I. Act to co-accused Amitawa Guin (Accused No.3), the Executive Director of the company. The dishonoured cheques were issued under joint signatures of accused No.3 and accused No.5, the General Manager (Accounts). In the notice, it is specifically stated that accused No.3 had issued cheques which got dishonoured on presentation to the Bank on the instructions of accused No.3. To the aforesaid legal notice, the petitioner company submitted reply dated 7.9.2021 stating therein some different dispute of accounting had led to stoppage of payment of the cheques.

3. Some common questions have been raised in both the petitions aforesaid and one individual issue has also been raised separately to support that prayer of petitioners in both the petitions deserves to be allowed.

4. Mr. A.K. Gupta, learned Senior Advocate for the petitioners contends that the impugned order suffers from non application of judicial mind. The law is well settled that the exercise of cognizance and issuance of process by the court is not a mere formality rather the order must disclose application of mind based on material on record. Learned Senior Advocate contends that the information of dishonour of cheque was received by the complainant on 9.4.2021 and 2.7.2021 respectively, therefore, notice of information of dishonour of cheque and request for payment of the cheque amount within 15 days should have been made within 30 days as required by the proviso (b) to Section 138 of the N.I. Act. Since the notice was sent admittedly much beyond 30 days, there is non compliance of mandate of law, therefore, the cognizance order stands vitiated on this ground.

5. Mr. Sunil Kumar Sharma, learned counsel for the complainant-respondent contends that there is no dispute regarding legal requirement of noticiting the petitioner within 30 days but in the peculiar facts and circumstances of this case when the whole country was under the grip of Corona virus, the Hon’ble Supreme Court Suo Motu In Re: Cognizance for Extension of Limitation reported in [2021]7SCR 1099 by order dated 23.9.2021 excluded the period between 15.3.2020 to 2.10.2021, the relevant portion is as follows:

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