The main legal point established in the judgment is that for a complaint under section 138 of the Negotiable Instruments Act to be maintainable, the statutory notice must be duly served on the drawer of the cheque, and the dishonor of the cheque must be in accordance with the provisions of the Act.

JUDGMENT :

Vandana Kasrekar, J.

1. Heard.

This miscellaneous criminal case shall also govern the disposal of connected M.Cr.C. No. 17895/2018 and M.Cr.C. No. 17899/2018.

2. Regard being had to the similitude in the controversy involved in the present cases, the miscellaneous criminal cases were analogously heard and by a common order, they are being disposed of by this Court. For the sake of convenience, the facts are being narrated from M.Cr.C. No. 17894/2018.

3. The petitioner has filed this application under section 482 of Criminal Procedure Code, 1973 for quashment of the proceedings under section 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Indore by which the JMFC has taken the cognizance of the complaint submitted by the respondent on 19/02/2016.

4. The brief facts of the complaint is that the petitioner and respondent had cordial relations with each other and the petitioner was in requirement of money for his personal and business needs and he, therefore, approached the respondent for loan of Rs. 5.50 lakhs. The said amount has been given by the respondent to the petitioner in cash in the month of October, 2016. When the respondent asked for repayment of the said loan amount from the petitioner, discharging his part liability, he gave a Cheque bearing No. 077444 dated 22.12.2017 for an amount of Rs. 1.10 Lakhs drawn on Indian Bank branch - Ushanagar, Indore. When the respondent deposited the said cheque in his Bank at Indore it was returned to him vide bank's return memo dated 17.01.2018 with remarks "kindly contact drawer/drawee bank and please present again."

5. It is further alleged in the complaint that due to return of the said cheque by the bank, the respondent sent a legal notice dated 22.01.2018 through registered post dated 23.01.2018 under section 138 of the Negotiable Instruments Act to the petitioner and the registered post of said original envelope containing the notice was returned to the respondent 'unserved'. Based on these allegations, the respondent filed a complaint under section 138 of the Negotiable Instruments Act against the petitioner before the Court below on 19.02.2018.

6. Based on the same complaint, the trial Court has taken cognizance of the offence vide order dated 20.02.2018. Thereafter, he was released on bail and charges have been framed against the petitioner on 23.04.2018. Being aggrieved by this, the petitioner has filed the present application.

7. Learned counsel appearing on behalf of the petitioner argued that the complaint is not maintainable as mandatory statutory 15 days notice has not been served on the petitioner by the respondent. He submits that the notice sent by the registered post before instituting the complaint was returned unserved to the respondent. Thus, the complaint is hit by Proviso to section 138 of the Negotiable Instruments Act, 1881. He submits that the acknowledgment card which is attached by the respondent with the complaint clearly shows that there are no signatures or acknowledgment of the petitioner or anyone else on the same. Further, the postal remarks on the envelope of such registered post also does not show that it is served on the petitioner. Hence, the said notice has not been served on the petitioner.

8. He further argues that the said Cheque was returned by the Bank with remarks "kindly contact drawer/drawee bank and please present again". He submits that the reason for return of the said cheque is not contemplated under section 138 of the Negotiable Instruments Act and the cheque has actually never been dishonoured. The respondent without contacting the bank and without presenting it again has preferred to file the impugned complaint. He further submits that no offence under section 138 of the Negotiable Instruments Act is made out from the allegations in the complaint and documents filed along with it by the respondent.

9. Learned counsel for the petitioner further relied on the judgment passed by the Apex Court