IMPORTANT POINT
A cheque dishonoured for reasons such as 'referred to the drawer' is covered under Section 138 of the N.I. Act, but a complaint must be filed after proper service of notice and cannot be filed in the name of a power of attorney holder as if he were the complainant.

JUDGMENT :

Hon'ble Anish Kumar Gupta, J.

1. Heard Sri Amit Daga, learned counsel for the applicant, Sri Priyansh Mishra, Advocate holding brief of Sri Surya Pratap Singh Parmar, learned counsel appearing for opposite party No.2 and Sri Prem Prakash Tiwari, learned AGA for the State.

2. The instant application under Section 482 Cr.P.C. has been filed to quash the Criminal Complaint dated 14.1.2019 as well as entire proceedings of Criminal Complaint Case No.61 of 2019 (Nurul Bashar vs. Mohd.Mohsin) under Section 138 of Negotiable Instruments Act, 1881, Police Station-Bhadohi, District-Bhadohi, pending before the court of Chief Judicial Magistrate, Bhadohi at Gyanpur.

3. The brief facts of the case are that the firm M/s Evergreen Carpets is a registered proprietorship firm and is involved in the manufacturing, export and sale of carpets. The applicant herein is the proprietor of the firm M/s Universal Carpets and used to purchase the carpets from the M/s Evergreen Carpets. The firm M/s Evergreen Carpets and the firm M/s Universal Carpets, both are the sole proprietorship firms. In connection with the aforesaid business transaction between them the firm M/s Universal Carpets has purchased the carpets worth Rs.1,10,39,676/-. Against the aforesaid purchase the Universal Carpets paid Rs.71,00,000/-to M/s Evergreen Carpets and the balance of Rs.39,39,676/-was due against the Universal Carpets. When M/s Evergreen Carpets demanded the balance amount of Rs.39,39,676/-, a cheque no. 23944651 dated 20.9.2018 of Rs.12,00,000/-of Jammu and Kashmir Bank, Branch Bhadohi was issued by M/s Universal Carpets in favour of M/s Evergreen Carpets. The said cheque was presented for encashment by M/s Evergreen Carpets in its Bank, which was dishonored on 21.11.2018 for the reason 'insufficient funds'. However, when it was discussed with the proprietor of the M/s Universal Carpets he asked to present the said cheque after five days so that the same can be honoured. Relying upon the aforesaid assurance given by the M/s Universal Carpets, M/s Evergreen Carpets again presented the same cheque on 27.11.2018 which was again dishonored on 28.1.2018 for the reason 'insufficient funds'. Thereafter on 19.12.2018, a registered legal notice was issued demanding the cheque amount. Thereupon a complaint under section 138 of the N.I. Act has been filed on 14.1.2019 before the C.J.M. Bhadohi. In the complaint there was no assertion with regard to the fact that as to when the registered legal notice was actually served on the M/s Universal Carpets. The said complaint dated 14.1.2019 has been filed by one Nurul Basar in his own name alleging in the opening paragraph of the said complaint that he is working in the firm M/s Evergreen Carpets as an Accountant and he has been authorized to file the complaint. Aggrieved by the aforesaid complaint lodged by the said Nurul Basar, who was the Accountant of M/s Evergreen Carpets, the instant application under Section 482 Cr.P.C. has been filed by the Proprietor of M/s Universal Carpets, namely, Mohd. Mohsin.

4. Learned counsel for the applicant has raised three broad submissions:

(i) In the instant case, cheque was dishonoured for the reason 'referred to the drawer'. Therefore, he submits that due to aforesaid reason for dishonour of cheque is not covered within the provisions of Section 138 of N.I. Act, 1881. Hence, no offence under Section 138 of N.I. Act is made out against the applicant.

(ii) Learned counsel for the applicant further submits that in the complaint under Section 138, it has been that the legal notice was issued on 19.12.2018 through registered post, however, there is no assertion in the complaint as well as in the statement of complainant recorded under Section 200 Cr.P.C. that when such notice was served on the applicant herein and if the Section 27 of the General Clauses Act, 1897 is considered, the said notice shall be presumed to have been served after the expiry of 30 days, therefore, in the instant complaint fi