The main legal principle established in the judgment is that a complaint under Section 138 of the Negotiable Instruments Act is not maintainable if it is filed before the expiry of the mandatory 15-day period from the date of service of notice of demand.

JUDGMENT :

Hon'ble J.J. Munir, J.

1. A perusal of the office report dated 25.4.2018/7.12.2018 shows that notice issued to opposite party no.2 has been received back after service. The service report received from the Chief Judicial Magistrate, Aligarh shows that the second opposite party has been personally served.

2. Accordingly, service upon opposite party No. 2 is held sufficient.

3. No one has put in appearance on behalf of the second opposite party. The Court, accordingly, proceeds to hearing.

4. Heard Sri Dharmendra Pratap Singh holding brief of Sri Hemendra Pratap Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. on behalf of the State.

5. This is an application under Section 482 Cr.P.C. seeking to quash the entire proceedings of Case No. 1023 of 2003, Ramesh Chandra Bhardwaj vs. Rajeshwar Prasad Bhardwaj, under Section 138 of Negotiable Instruments Act, police station Quarsi, District Aligarh pending in the Court of the First Special Magistrate, Aligarh.

6. Facts giving rise to the present application lie in a narrow compass.

7. The dispute involved here, is about the realization of a cheque of the worth of Rs. 50,000/-dated 20.04.1999 drawn on the State Bank of India, Branch Dharam Samaj College, Aligarh and payable to opposite party no. 2, Ramesh Chandra Bhardwaj. The cheque aforesaid was handed over to Ramesh Chandra Bharadwaj, opposite party no. 2, who is hereinafter referred to as payee, on 14.02.1999 as a post dated instrument.

8. The cheque aforesaid was presented by the payee for realization to his bank on 21.08.1999, and was returned to him dishonored on 24.08.1999, with a bank memo from the payee's bank, indicating the reason of dishonor to be "insufficient fund". The payee caused a notice of demand to be issued to the applicant on 02.09.1999, by registered post. It was served upon the applicant on 16.09.1999. Alleging in paragraph No. 7 of the impugned complaint, that the notice of demand had been served upon the applicant on 06.09.1999, the payee filed the impugned complaint on 24.09.1999 before the Magistrate. The complaint was registered as Complaint Case No. 982 of 1999, on the file of the IIIrd Additional Chief Judicial Magistrate, Aligarh. In support of the complaint, the payee examined himself on oath under Section 200 Cr.P.C., on 24.09.1999, and the Magistrate on the basis of the statement recorded, summoned the applicant to stand his trial for an offence punishable under Section 138 Negotiable Instruments Act (in short 'the Act') by his order dated 19.09.2000.

9. This application was filed before this Court on 2nd November, 2004 seeking to quash the impugned complaint, amongst others, on ground that the notice of demand was served upon the applicant on 16.09.1999 whereas the impugned complaint was filed on 24.09.1999, that is to say, much before the expiry of the mandatory period of 15 days, envisaged by Clause (c) to the Proviso to Section 138 of the Act. This Court issued notice vide order dated 08.11.2004 and stayed further proceedings before the Magistrate. Now, after all this while this application has come up for hearing where, as has already said hereinbefore, despite service of notice upon the payee, he has not put in appearance. Thus, the assertions of fact set out in the affidavit filed in support of the complaint, remain unrebutted. To this Court's understanding the most important facts are, the date on which the notice of demand was served upon the payee, and, the date on which the impugned complaint was filed before the Magistrate. No doubt, there is a specific assertion in paragraph 4 of the affidavit in support of the complaint that the notice of demand was served upon the payee on 16.09.1999, and when payment was not made good, the impugned complaint was moved by the payee on 24.09.1999. This fact is re-asserted in aid of a ground to quash, in paragraph 10 of the affidavit also. But the fact that these two most crucial dates stand unrebutted on record, in t