IMPORTANT POINT
A complaint under Section 138 of the Negotiable Instruments Act must be filed within one month of the cause of action arising, and failure to do so without sufficient cause renders the complaint time-barred.

JUDGMENT :

(Vinod Chaflerji Koul, J.) :

1. A complaint filed under section 138 of the Negotiable Instrument Act as well as the cognizance taken on the said complaint is sought to be quashed by the petitioner through the medium of this petition filed under section 482 of the Code of Criminal Procedure.

2. The main ground taken up for quashing of the complaint and the cognizance taken is that the Trial Court has entertained a time barred complaint and has after taking cognizance issued process against petitioner.

3. The complainant/respondent is stated to have been given two cheques by the petitioner-accused for an amount of Rs. 2,00,000/- on 02.01.2021 and 04.01.2021. The said cheques were drawn on HDFC, Bank Barzulla, Srinagar, which were presented by complainant/respondent for encashment and both the cheques were dishonoured and returned back with endorsement "accounts closed". The reason for dishonour of the cheques, therefore, was that the account was closed by the accused-petitioner. Respondent's case is that upon dishonour of the cheques, he approached petitioner/accused with a demand to liquidate the amount, but he did not accept his demand and did not pay the amount of the cheques and thereafter complainant/respondent served demand notice upon accused/petitioner through registered post on 20.04.2021 requesting him to pay the amount to the complainant.

4. The petitioner has placed on record copies of the cheques issued along with the memo of the bank and also the notice. The notice of demand has been sent on 19.04.2021 and by virtue of the said demand notice, the petitioner/accused had been asked to pay the amount and in the event of his failure to pay the amount, proceedings would be initiated against him.

5. Notice is also on record along with the postal receipt. As per the postal receipt, the said notice has been posted on 20.04.2021. The complaint in question has been filed on 30.07.2021. The case of the petitioner is that having regard to the date of dishonour of the cheque, and issuance/service of the notice upon him, complaint filed by respondent/complainant was time barred, therefore, Trial Court ought not to have taken cognizance and issued process against him and, as such, the complaint as well as the order whereby the cognizance has been taken, require to be quashed.

6. On the other hand, counsel for the respondent/complainant submits that the complaint was filed within time, therefore, nothing wrong can be found with the order of the Trial Court whereby the complaint has been entertained and cognizance taken and process issued.

7. Section 138 of the Negotiable Instrument Act deals with dishonour of cheque for insufficiency, etc. of the funds in the account of the drawer of the cheque. Section 138 reads 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 offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this Section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(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