IMPORTANT POINT
The court established that for a complaint under Section 138 of the N.I. Act to be maintainable, specific procedural requirements must be met and reflected in the summoning order, including the presentation of the cheque, issuance of a demand notice, and the drawer's failure to pay within the stipulated time.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard learned counsel for the applicant and Sri Arbind Kumar, learned A.G.A. for the State.

2. The present 482 Cr.P.C. application has been filed for quashing of entire proceeding as well as summoning order dated 22.11.2023 passed by learned Additional Chief Judicial Magistrate, Second, Jaunpur in Complaint Case No.13185 of 2023 (Jay Prakash Upadhyay Vs. Rakesh Upadhyay), under Section 138 of N.I. Act, Police Station Sujanganj, District Jaunpur, pending in the Court of Additional Chief Judicial Magistrate, Second, Jaunpur.

3. Facts giving rise to the present case are that the opposite party no.2 had filed a complaint under Section 138 N.I. Act against the applicant with the allegation that the complainant and the present applicant were good friends and the applicant was involved in property dealing. He assured the complainant to provide him with land. For that purpose, Rs.20,00,000/- (Rupees Twenty Lac) was taken by the opposite party no.2 as advance, but subsequently, the applicant did not execute the sale deed of the land despite repeated requests of the complainant. The applicant issued two cheques for each Rs.10,00,000/- (Ten Lac) on 02.03.2023. When the complainant presented those cheques in his account maintaining in Baroda Uttar Pradesh Gramin Bank, the same was returned because of insufficiency of fund in the applicant's account.

After that, despite repeated request applicant has not paid the cheque amount. After that, the complainant sent demand notice through registered post on 29.03.2023 to the present applicant, but despite receiving the same cheque, the amount was not paid by the applicant. In support of his complaint, opposite party no.2 had also filed a receipt of registered post dated 29.03.2023 as well as the account ledger report issued by Baroda Uttar Pradesh Gramin Bank regarding the account of opposite party no.2 showing the bouncing of cheque on 02.03.2023. Learned Magistrate, after that, had issued a summons to the applicant by order dated 22.11.2023, which is impugned in the present application.

4. Contention of learned counsel for the applicant is that the impugned summoning order is bad in the eyes of the law because the cognizance for the offence under Section 138 of N.I. Act can be taken only after satisfying the condition mentioned under Section 142 N.I. Act, which requires a complaint should be made within one month from the date of arising of the cause of action, and 15 days' notice of demand should also be made within 30 days after receiving information from the bank regarding dishonour of cheque, but in the present case learned Magistrate had not discussed anything.

5. Per contra, learned A.G.A. has submitted that the issue raised by learned counsel for the applicant is his defence and disputed question of fact that can be decided during trial.

6. Considering the submission above of learned counsel for the parties and from the perusal of the record, the sole legal question arises: which condition authorizes the concerned Court to take cognizance of the offence under Section 138 N.I. Act. Section 138 N.I. Act prescribed when the offence under Section 138 N.I. Act deemed to be committed. For reference, under Section 138 N.I. Act is being quoted as under:-

"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