IMPORTANT POINT
A valid demand notice under Section 138 of the N.I. Act must be issued after the cheque is returned unpaid; failure to do so renders the complaint invalid.

JUDGMENT :

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 registered for the offence punishable under Section 138 of the N.I. Act which is now pending in the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat.

3. The brief facts of the case is that the petitioner allegedly issued three cheques i.e., one cheque dated 20.02.2019 for Rs.12,00,000/- and two cheques dated 03.05.2019 for Rs.16,00,000/- each; all the 3 cheques of State Bank of India, Kalunga Branch. The said three cheques were deposited by the complainant with his banker and all the three cheques were returned with the remarks “payment stopped by drawer” on 06.05.2019. The complainant thereafter sent a demand/legal notice to the petitioner but it is the case of the complainant that till today in spite of the said notice, the petitioner neither returned the cheque amount nor gave any reply to the demand notice and the complaint was filed on 14.06.2019. The undisputed fact remains that there is no material in the record to suggest; as to whether the said demand notice for payment of the money allegedly secured by the said three cheques was ever received by the petitioner/accused of the case though it is mentioned in paragraph-4 of the complaint that the three cheques were returned with the remarks “payment stopped by drawer” on 06.05.2019 but learned counsel for the petitioner draws the attention of this Court towards page-22-24 of the brief and submits that the alleged cheque return memos filed by the complainant along with the complaint shows that the cheques were returned on 05.07.2019 i.e. after filing of the Complaint Case No.746 of 2019 which was filed on 14.06.2019. It is stated in the complaint that the complainant sent demand/legal notice to the accused-petitioner on 15.05.2019 but till today the petitioner neither returned the total cheque amounts of Rs.44,00,000/- of the said three cheques taken together nor replied to the demand notice.

4. Learned counsel for the petitioner further submits that the complaint is pre-mature one as the complaint could have been filed at least after 45 days from the date of issue of the notice as no service report of the said notice upon the accused-petitioner has been filed. In support of his contention, learned counsel for the petitioner relies upon the judgment of this Court in the case of Shyam Sundar Singh @ Shyam Sunder Singh vs. State of Jharkhand & Another reported in 2019 (3) JBCJ 676 (HC) paragraphs-7 of which reads as under:-

7. “It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice as has been held by the Hon’ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph no. 25 of which reads as under:-

“25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The com