A complaint under Section 138 of the Negotiable Instruments Act is not maintainable if filed before the expiry of the statutory notice period, which affects the cause of action.

JUDGMENT :

BRIJ RAJ SINGH, J.

1. Since the common question of facts and law are involved in both the applications, therefore, with the consent of the parties, they are being heard and decided by a common judgement.

2. In APPLICATION U/s 482 No. 692 of 2023, the applicant has sought following main relief(s) :-

“to quash the orders dated 04.01.2023 and 17.08.2022 passed by learned Additional Civil Judge Junior Division C-No.26/ Additional Judicial Magistrate - Sultanpur, in the interest of justice and the Hon'ble Court further be pleased to restrain the lower Court 23 below from proceeding any further in pursuance of aforesaid Criminal Case No. 13 of 2022, Under Section 138 N.I. Act, Police Station-Kotwali Nagar, District-Sultanpur and also quash the entire proceeding of the above said case, in the interest of justice.”

3. In APPLICATION U/s 482 No. 1829 of 2022, the applicant has sought following main relief(s) :-

“to quash the order dated 09.02.2022 in Criminal Case No. 390/2022 "M/s Kashish Enterprises Vs. Ankur Asthana" Under Section-138 N.I. Act, Police Station- Kotwali Nagar, District Sultanpur passed by the learned Court below i.e. Additional Civil Judge (Lower Division) Avar Khand/Judicial Magistrate Room No. 31 District Sultanpur and further proceedings of the case passed in pursuance thereof.

It is further prayed that this Hon'ble Court may kindly be pleased to quash the entire proceeding of Criminal Complaint No. 390/2022 "M/s Kashish Enterprises Vs. Ankur Asthana" Under Section-138 N.I. Act, Police Station- Kotwali Nagar, District Sultanpur, in the interest of justice.”

4. Before proceeding, it would be apt to indicate that the applicant had challenged the order dated 09.02.2022 in APPLICATION U/s 482 No. 1829 of 2022 whereby the complaint was directed to be registered and notice was issued to the applicant and during the pendency of the said application, the applicant has also filed second APPLICATION U/ s 482 No. 692 of 2023.

5. Facts of the case, as stated by learned counsel for the applicant, are that the the opposite party no.2 preferred Criminal Complaint No. 390 of 2022 (M/s Kashish Enterprises Vs Ankur Asthana), under Section-138/142 of Negotiable Instruments Act, 1881 (in short “NI Act”), dated 03.02.2022. From a perusal of the above noted complaint, it transpires that the cheque was dishonoured due to insufficient fund and the said information was given by the complainant to the applicant through registered post on 11.09.2020. In the aforesaid complaint, an order dated 06.10.2020 has been passed by the trial Court directing for appearance of the applicant against which the applicant has filed revision before the learned District and Session Judge, Sultanpur (in short “revisional Court”) and the said criminal revision was allowed vide order dated 18.11.2021. Against the order of revision dated 18.11.2021 passed by the revisional Court quashing the order dated 06.10.2020, the Opposite Party No. 2 had filed a petition under Section 482 Cr.P.C. before this Court registered as APPLICATION U/S 482 No. 82 of 2022 and this Court passed an order dated 25.01.2022 modifying the order dated 18.11.2021 passed in Criminal Revision No. 11 of 2021 passed by Additional District and Session Judge Court No. 1 Sultanpur to the extent that the petitioner (opposite party no.2 herein) was permitted to file a fresh petition before the learned trial Court within a period of one month and the same shall be decided strictly in accordance with law.

6. It is also stated that the opposite party n