The requirements of Section 138 of the Negotiable Instruments Act, including the service of notice of demand on the accused, must be complied with before cognizance of the offence can be taken.

N. L. GANGULY, J.

( 1 ) THIS petition under Sec. 482 Cr. P. C. has been filed against the order passed by the Magistrate affirmed by the learned Sessions Judge in revision refusing to summon the accused person in a case under Sec. 420 I. P. C. read with S. 138 of Negotiable Instruments Act, as amended by Amendment Act No. 66 of 1988.

( 2 ) THE dispute arises out of a business transaction. A post-dated cheque for 25-11-89 was issued by the accused/opp-party on 15/10/1989 which was to be presented before the Bank on 25/11/1989. The said cheque was presented for encashment on 19-2-90 before the Bank. It was returned by the Bank with letter dated 27-2-90 with slip "refer to drawer as there was insufficient amount in the account of the accused/opp-party. The cheque was dishonoured and not encashed. Being aggrieved by such dishonouring of the cheque, the criminal complaint aforementioned was filed. The complainant before filing the Criminal Complaint sent a notice dated 8-3-90 through his Counsel Sri Maheshwari, Advocate for making payment of the amount of cheque.

( 3 ) THE present petition under Sec. 482 Cr. P. C. is thus filed by the complainant. The specific finding about the nature of case as of a civil nature is supported by the admitted fact stated in the complaint that there had been business transaction between the parties. Further the fact that the post-dated cheque in question was dated 25-11-89 issued on 15-10-89. The cheque was not presented on 25-11-89 or on a near date. It was presented on 19-2-90, when it was found that full amount was not there in the account of accused. Since the cheque was presented after about 7 weeks of the due date for encashment of cheque, it cannot be conclusively said that on 25-11-89 or near about dates there was no money in the bank account. Further it also cannot be assumed that on the date of issuing of the cheque there was no intention of accused to pay at all. In view of the admitted fact of having business transactions between the parties, the learned Sessions Judge was correct in saying that it was a case of civil nature and no offence under Sec. 420 I. P. C. was made out against the accused /opp-party.

( 4 ) THE other argument which has been addressed by the counsel for the petitioner is that the case under Sec. 138 of the Negotiable Instruments Act, was fully made out and the Courts below have not considered the said aspect of the matter and illegally refused to summon the accused for the said offence. The provisions of Sec. 138 of the Negotiable Instruments Act, 1981 (1881) are produced as under to appreciate the argument: "138: Dishonour of cheque for insufficiency, etc. of funds in the account :-Where any chequedrawn by a person on 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 person of this Act, be punished with imprisonment for a term which may extend to one year 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, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;and (C) th