Hon’ble Arvind Kumar Tripathi, J.—Heard learned counsel for the applicant, learned A.G.A. and perused the record.

2. The Criminal Misc. Application under Section 482 Cr.P.C. has been filed with the prayer to quash the proceeding of Case No. 3462/9 of 2011 (Aftab Ahmad v. Mohd. Furqan under Section 138 N.I. Act, PS. Mughalpura, District Moradabad pending before A.C.J.M, Court No. 4, Moradabad.

3. Learned counsel for the applicant submitted that according to the complaint case a cheque for a sum of Rs. 1,00,000/- was issued on 1.3.2010 by the applicant. When that cheque was presented at Lal Bagh, Branch, Moradabad, it was dishonoured on the ground of insufficient fund and on 15.6.2010 cheque was returned. However, that cheque was re-presented before the bank and it was again dishonoured due to insufficient fund on 16.7.2010. Thereafter a notice was given on 24.7.2010 and after that notice was returned on 31.7.2010 as unclaimed and after that the complaint dated 6.9.2010 was filed. Hence there was no compliance of the provision and there was delay because in view of the Section 138 of Negotiable Instrument Act, the complainant was required to give notice within thirty days from the date of the communication of dishonour of the cheque. The cheque was dishonoured first time on 15.6.2010 and again was dishonoured on 16.7.2010. However, notice was given on 24.7.2010 after one month, from the date when on first time cheque was returned, hence the complaint in the present case is not maintainable. He also contended that even the notice was not served upon the applicant. Hence on this ground also the complaint is not maintainable and the same is liable to be quashed.

4. Learned counsel for the applicant relied two judgments of the Apex Court in the case of Siva Kumar v. Natarajan, 2009(3) JIC 231 (SC) and Shah Mohammad and others v. State of U.P. and another, 2010(1) JIC 478 (All)(LB).

5. Considered the submissions of counsel for the parties. In the present case according to complaint the cheque was issued and due to insufficient fund it was dishonoured. It was communicated on 15.6.2010. Thereafter the applicant has assured that he would deposit the amount in the account. Since the period of cheque was valid, hence during the period of validity cheque was again presented with the bank. However, it was again dishonoured and returned due to insufficient fund on 16.7.2010. Registered Notice was given on 24.7.2010, hence there is no delay in giving notice. The notice was given through registered post as well as with U.P.C. However, the applicant refused to take it and it was returned as unclaimed on 31.7.2010. Thereafter when the payment was not made within 15 days then, cause of action arises due to non payment of the amount. The complaint dated 6.9.2010 was filed within a month in view of the provision of 138 and 142 of Negotiable Instrument Act, hence in view of the above, there is no illegality and the notice as well as the complaint was well within the time in view of the aforesaid provision of Negotiable Instrument Act. The provisions of Section 138 and 142 of the Negotiable Instrument Act are quoted here in below:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an 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 provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or