The main legal point established in the judgment is that once a registered notice is sent under Proviso (b) to Section 138 of the Act to the drawer of the cheque, presumption of due service of the notice would stand attracted under the Evidence Act and the General Clauses Act.

Pankaj Naqvi,J.

Heard Sri Anil Kumar Pandey and Sri Arvind Srivastava, learned counsel for applicant and learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No.3865/2014, under Section 138 of the Negotiable Instruments Act, pending in the court of Addl. Chief Judicial Magistrate-VII, Agra and the order of summoning dated 18.12.2014.

1. O.P. No.2 filed a complaint under Section 138 of the Negotiable Instruments Act (for short "the Act") against the applicant alleging that a cheque dated 24.8.2014, issued by the applicant, for Rs.47,88,545/-, was dishonoured on 10.9.2014 as per bank memo received by O.P No.2 on 12.9.2014. The cheque was again presented to the drawee bank for payment on 29.10.2014, but was again dishonoured on 1.11.201 as per bank memo received by O.P. No.2 on 2.11.2014. O.P. No.2 sent a registered legal notice on 20.11.2014 to the applicant calling upon him to tender the amount in question within 15 days of the date of receipt of notice, which remained unreplied, hence a complaint under Section 138 of the Act was lodged on 18.12.2014. The complaint, the affidavit, the original cheque, bank memos, notice dated 20.11.2014, its receipt, etc. prima facie disclosed commission of an offence under Section 138 of the Act, consequently, the applicant stood summoned under order dated 18.12.2014.

2. It is submitted on behalf of the applicant that in the absence of any averment as regards service of notice under Proviso (b) & (c) to Section 138 of the Act, complaint as framed and filed did not disclose any cause of action, thus the same is liable to be quashed. He placed reliance on a Judgment of the Apex Court in the case of M.D. Thomas v. P.S. Jaleel and another, 2009 (14) SCC 398.

3. Learned A.G.A. would submit that the complaint as framed and filed along with appended documents, disclosed sufficient cause of action. He further on the strength of the judgment of the Apex Court in the case of Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, 2014 (12) SCC 685 , contends that once a registered notice is sent under Proviso (b) to Section 138 of the Act to the drawer of the cheque, presumption of due service of the notice would stand attracted both under sub-section 114 of the Evidence Act and under Section 27 of the General Clauses Act and it is not the requirement of law to state in the complaint that notice is deemed to have been served with the addressee or he is deemed to have the knowledge of notice unless and until contrary is proved by the addressee at the stage of evidence.

4. Chapter XVII of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so.

5. The Proviso appended to Section 138 of the Act lays down three conditions which are to be complied with before a complaint under Section 138 of the Act could be filed. Proviso (a) is not relevant for the present purpose and accordingly Proviso (b) & (c) are quoted hereunder:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.-

Provided that nothing contained in this section shall apply unless--

(a) ..........

(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 thirty days of the re