IMPORTANT POINT
Dishonour of cheque--Notice--In case demand of amount of cheque is not made, which is one of incriminating circumstances, which exposes drawer for being proceeded against under Section 138 of Act, same amounts to non-compliance of ingredients of that offence.

Gurdev Singh, J.:- Petitioners-Vinod Kumar Arya and Varun Arya have filed this petition under Section 482 of the Criminal Procedure Code for quashing complaint No. 51 dated 20.1.2006 filed against them by Dalel Singh Ahlawat-respondent/complainant for the offences under Sections 420 and 120-B IPC and Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and the summoning order dated 28.1.2006.

2. The above referred complaint has been filed on the ground that the petitioners/accused were aware of the fact that the complainant had received Rs. 20 lakhs as retiral benefits and they requested him to lend that amount to them. Accordingly, the complainant gave two cheques both dated 17.7.2005 of Rs. 19,40,000/- and Rs. 60,000/- to them. Petitioner/accused No.1 executed the receipt and issued Cheque No. 490624 dated 19.7.2005 for the sum of Rs. 20 lakhs, drawn on State Bank of India in discharge of said liability. The accused had been persuading him not to present the cheque in the bank and that they would re-pay the loan amount in cash. When the date of the cheque was going to expire, he presented the same for payment but was dishonoured on account of insufficient funds in the account of the accused. On 9.12.2005, he served a legal notice upon accused No.1 and inspite of service of the notice, the amount of the cheque was not paid. The accused again made a promise to re-pay the loan amount. They paid Rs. 12 lakhs to him on 2.1.2006 and promised that a sum of Rs. 20 lakhs would be paid upto 10th of that month and advised him not to present the cheque again to his banker. When the cheque was presented, the same was dishonoured with the remarks “Refer to Drawer”. In support of the complaint, the complainant produced preliminary evidence and on the basis thereof, the accused were summoned for the offences under Sections 138 and 142 of the Act and Sections 420 and 120-B IPC.

3. I have heard learned counsel for both theThe complaint and the summoning order have been challenged in this petition on the grounds that no offence under Sections 420 and 120-B IPC or under Sections 138 and 148 of the Act is made out from the contents of the complaint. After legal notice was received, a cheque of Rs. 12 lakhs was issued in favour of the complainant and in order to make full payment of the loan amount, Pay Order No. 107806 for the sum of Rs. 8,24,000/- was issued to the complainant and that amount was duly received by him. After the cheque amount had been received by the complainant, no cause of action survives. Notice so served by the complainant, in which a demand of Rs. 3.5 crores has been made, is vague and the same is not proper legal notice. The fact that the complainant had received back the loan amount has been concealed. On the date the complaint was filed, there was no legally enforceable debt against the petitioners.

4. I have heard learned counsel for both the sides.

5. It has been submitted by the learned counsel for the petitioners that the amount of loan so advanced to the petitioners/accused was returned by them before the complaint was filed and after the notice was issued by the complainant. In that eventuality, the complainant had no cause of action to file the complaint itself. He also contended that the notice so served upon the petitioners is not legal and valid as no demand of the cheque amount was made therein. That itself is a ground for quashing the complaint and the summoning order.

6. On the other hand, it has been submitted by the learned counsel for the respondent that sum of Rs. 12 lakhs was received by the complainant before filing of the complaint and the balance amount of Rs. 8,24,000/- was not received. The payment was to be made by the petitioners within 15 days of the receipt of the notice but the same was not done and, as such, they committed the offence under Section 138 of the Act and the complaint is very much competent. He also tried to assert that the n