ORDER :

(Karunesh Singh Pawar, J.)

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. In view of the order which is proposed to be passed, notice to respondent no. 2 is dispensed with.

3. By This petition, the petitioner has prayed for quashing the impugned proceeding of complaint case No. 3792/9 of 2016 as well as the summoning order dated 05.04.2016 passed by the learned trial court.

4. Brief facts of the case is that an offer was given by the applicant to the complainant to keep his money with him. Believing that the complainant deposited Rs 1,00,000/-with the applicant in presence of a witness and promised to pay him back anytime after 1 year. The complainant further gave different amounts on different dates and all those amounts were got entered into a passbook by the applicant. After one year, the complainant demanded his money back, then on 10.09.2015, a check of rupees Rs. 3,50,000/- drawn at Punjab National Bank numbered as 958870, and another check dated 20.09.2015 of Rs. 3,50,000/-, numbered is 958871 were given at the house of the complainant by the applicant-accused which were presented by the complainant at the concerned bank. Those cheques were dishonored due to insufficiency of funds. Then the complainant confronted with the applicant regarding the dishonor of cheque and then he asked him again to present the cheque on 23.12.2015 as he has deposited the amount in the bank. Again checks were presented on 23.12.2015, however, the cheques were dishonored by the bank on 29.12.2015 on account of of insufficient funds and were returned.

5. Thereafter, the compliment gave a notice dated 11.01.2016 through his Council to the applicant. It is alleged in the complaint that after receiving the notice, the applicant has not given any heed to the demand of the complainant neither he has made the payment, hence, the complaint was filed.

6. Learned counsel for the applicant submits that that there is no averment in the complaint disclosing the date of service to the applicant and therefore, the complaint case ought to have been dismissed as premature and summoning order should not have been passed. It is further submitted that even if the legal notice dated 11.01.2016 is accepted as served then also the complaint filed by the complainant is premature.

7. Having heard the learned counsel for the complainant and the learned A.G.A. and perusal of the record also including the summoning order which shows that the learned trial court has considered the fact that the cheques has been produced before the bank in the stipulated period of three months. Cheques were returned on 29.12.2015 and the notice was given by the complainant on 11.01.2016 and after prima facie being satisfied regarding the compliance of three conditions provided under Section 138 of N.I. Act, the summons appears to have been issued. Section 138 of N.I. Act is extracted 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 provisions 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 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)