A complaint under Section 138 of the Negotiable Instrument Act requires valid notice and cannot be quashed on service grounds once trial is concluded.

JUDGMENT :

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 with a prayer to quash the entire criminal proceeding including the order taking cognizance dated 26.11.2021 passed by the learned S.D.J.M., Sahibganj in connection with Complaint Case No.120 of 2020 whereby and where under a prima facie case under Section 138 of the Negotiable Instrument Act was found against the petitioner.

3. The brief fact of the case is that the opposite party no.2 –complainant gave Rs.5,00,000/- to the petitioner herein, who is the accused person of Complaint Case No. 120 of 2020. The petitioner issued a cheque of Rs.5,00,000/- to the complainant in discharge of the said debt which was dishonoured upon being presented by the complainant through her account in the bank. The cheque was dishonoured because of insufficient balance in the account of the petitioner. A legal notice was issued demanding payment of the cheque amount from the petitioner. No reply to the notice was received by the complainant nor the petitioner paid the amount for which the cheque was issued. Hence, the complainant filed the complaint. The statement of the complainant under solemn affirmation was recorded and the complainant also examined one inquiry witness. Considering the materials in the record, the learned S.D.J.M., Sahibganj found prima facie case for the offence punishable under Section 138 of the Negotiable Instrument Act and directed to issue summons to the petitioners and the trial is going on.

4. It is submitted by the learned counsel for the petitioner that he is not aware about the present status of the trial but the learned counsel for the opposite party no.2 submits that the Complaint Case No. 120 of 2020 is fixed to 03.05.2025 for judgment. It is next submitted by the learned counsel for the petitioner that legal notice has not been validly served upon the petitioner, therefore, there is no cause of action for the complainant to file the complaint. It is next submitted that the cheque was misused by the complainant.

5. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Sarav Investment & Financial Consultancy Private Limited and Another vs. Llyods Register of Shipping, Indian Office, Staff Provident Fund and Another, reported in (2007) 14 SCC 753 wherein in the facts of the case, though demand notice of the cheque amount was made through employees of the drawee of the cheque but the affidavit filed was not showing that as to when the, said employee has gone to serve the notice and as per the date on which the notice was sought to be served, the complaint was premature; on those facts, it was held the complaint did not fulfill the requirement of law.

6. The learned counsel for the petitioner next relies upon the Judgment of Hon'ble’ Supreme Court of India in the case of Yogendra Pratap Singh Vs. Savitri Pandey and Another , reported in (2014) 10 SCC 713 wherein the Hon’ble Supreme Court of India held that the complaint filed before the expiry of fifteen days from the date on which notice has been served on the drawer/accused is no complaint at all in the eye of law. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed.

7. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for by the petitioner in this criminal miscellaneous petition. It is submitted by them that unlike the case of Sarav Investment & Financial Consultancy Private Lim