The necessity of asserting the service of demand notice in a complaint under Section 138 of Negotiable Instruments Act for maintainability.

Learned Counsel for the applicant submitted that in para 10 of the complaint filed by the complainant- opposite party No. 2 it has been asserted that a notice was sent to the accused but there is no assertion to this effect that the notice was served upon him and only this fact has been stated that the accused did not send reply to that notice. He cited before me a ruling of Honble Supreme Court in Shakti Travel and Tours v. State of Bihar and Anr. , 2003 SCC (Cri) 1217, in which it has been held that where it has not been asserted in the complaint that the demand notice was served upon the accused, the complaint under Section 138 of Negotiable Instruments Act is not maintainable.

2. Issue notice.

3. Notice on behalf of opposite party No. 1 has been received by A. G. A. He prays for and is granted three weeks time to file counter-affidavit. Issue notice to opposite party No. 2 by registered post.

4. List for admission after service upon opposite party No. 2.

5. In the meantime, further proceedings of complaint case No. 1059 of 2004, Khaleeq Ahmad v. Ravindra Singh Gugyani pending before the Judicial Magistrate, Baheri, Bareli shall remain stayed till the next date of listing.

Application rejected.

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