The necessity of the drawer failing to make the payment within 15 days of the receipt of the notice for a case to be filed under section 138 of N.I. Act, and the requirement of following statutory provisions.

JUDGMENT :

Heard Mr. Mohit Prakash, learned counsel for the petitioner, Ms. Sushma Aind, learned counsel for the State and Mr. Shadab Bin Haque, learned counsel for the O.P. No.2

2. The present petition has been filed for quashing the order dated 17.05.2014 passed by the learned Chief Judicial Magistrate, Gumla in connection with Complaint Case No. 39 of 2013 whereby he has been pleased to call upon the petitioner to face the trial under section 138 of N.I. Act.

3. The complaint petition has been filed alleging therein that the petitioner and complainant were business partners earlier. On 10.04.2012 the petitioner demanded a huge sum of Rs. 30 lakhs from the Complainant for purchasing 4, 5 plots of land and the Petitioner assured that he would return money very soon. The Complainant somehow managed Rs.30,000,00/-(Thirty Lakhs only) and gave to the Petitioner in part wise and in lieu thereof the petitioner has given a cheque of Rs.30,000,00/- (Thirty Lakhs only) to the complainant.

It was further alleged that the complainant has produced the cheque on 25/08/2012, 30/08/2012 and 25/09/2012 respectively but all the times the cheque was dishonoured because of insufficient fund. The complainant informed this fact to the petitioner but the petitioner all the times requested for more time for repayment of the amount. But when the petitioner did not pay back the loan amount, the complainant has sent a legal notice dated- 01/11/2012 to the petitioner and on receiving the said notice the petitioner met the complainant and suggested for some time for repayment of Rs.30,000,00/-(Thirty Lakhs only) and also requested not to institute any case.

It was further alleged that after one and half months the complainant again met the petitioner and demanded his money and the petitioner refused to pay back the money to the complainant. Thereafter the complainant has again sent the legal notice dated 21/12/2012.

It was further alleged that while taking Rs.30,000,00/-(Thirty Lakhs only) both the parties entered into an agreement wherein the petitioner agreed to register his house (total value of Rs.10,000,00/-(Ten Lakhs only)) in the name of the Complainant if the repayment was not made..

4. Learned counsel for the petitioner submits that the learned court has taken cognizance on 17.05.2014. He submits that the cheque was presented on 25.09.2012 and legal notice was sent on 01.11.2012 that is after 30 days of the mandatory provision made under section 138 of N.I. Act. He submits that second notice dated 21.12.2012 is also not in accordance with law and in view of statutory provision if the compliance is not there the order summoning the petitioner is bad in law.

5. On the other hand Mr. Shadab Bin Haque, learned counsel for the O.P. No.2 submits that these are the submission which are subject matter of trial and once the notice is issued presumption is there that the notice has been received and that is the subject matter of trial. To buttress his argument, he relied in the case of “Ajeet Seeds Ltd. v. K. Gopala Krishnaiah”, AIR 2014 SC 3057. He further submits that in light of section 27 of the General Clause Act even notice is unserved it is deemed to have been served on that address as held by the Hon’ble Supreme Court in that case. On the deemed service of notice he referred to the case of ‘N.Parameshwaran Unni v. G.Knnan and Anr”, AIR 2017 SC 1681. He submits that warrant of arrest has been issued against the petitioner. On these grounds he submits that there is no illegality in the summoning order and this Court may not interfere.

6. In the case in hand, the entire argument is on the interpretation of clause ‘c’ of the proviso to section 138 of N.I. Act. In light of the argument the Court is only required to answer as to whether the case was filed prematurely or not. Section 138(c) of the N.I.Act is quoted below:

“(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due