The service of notice and dishonour of cheques under section 138 of N.I. Act cannot be determined at the threshold and must be decided during trial, with the burden of proof shifting at different stages.

ORDER : – The applicant has invoked extraordinary jurisdiction of this Court under section 482 of Criminal Procedure Code for quashing the proceedings in Criminal Case No. 27638/2018 pending before the Judicial Magistrate First Class, Indore for the offence punishable under section 138 of N.I. Act.

2. The facts of the case which are relevant to decide the present application is that the respondent filed a private complaint against the applicant for the commission of offence punishable under section 138 of N.I. Act before the Judicial Magistrate First Class, Indore agitating that the applicant and respondent had good relation with each other being colleagues in their office and the applicant was in requirement of money for his business needs and approached for respondent for getting loan and respondent gave him total Rs. 2,40,000/- on 10-2-2015, 6-9-2016 and 7-11-2017. When the respondent asked for repayment of the said amount from the applicant, discharging his part liability, the applicant gave Rs. 25,000/- cash and for remaining amount of Rs. 2,15,000/-, he issued three cheques, first bearing No. 115823 dated 1-4-2018 for Rs. 35,000/-, second cheque bearing No. 077455 dated 5-4-2018 for Rs. 1,00,000/- and third cheque bearing No. 088756 dated 3-5-2018 for Rs. 35,000/- drawn on Indian Bank Branch Usha Nagar, Indore. When the respondent/complainant deposited the said cheques in his account operated in Axix bank at Indore, they were returned unpaid vide returned memos dated 5-5-2018, 3-5-2018, 4-5-2018 and 5-5-2018 with remark on each cheques as “Kindly contact drawer/drawee bank and pleasen.” After that the respondent/complainant sent a legal notice dated 18-5-2018 to the applicant through registered post and the said registered dak was returned to the respondent with report “Praptkarta Aseemit Samay Ke liye Bahar Gaye Hain, Atah Wapas.” Then the respondent/complainant filed complaint under section 138 of N.I. Act before the Judicial Magistrate First, Indore.

3. Vide order dated 9-8-2018, learned Magistrate has taken cognizance against the present applicant upon finding prima facie case for the offence punishable under section 138 of N.I. Act and had issued summons against the applicant for his appearance. The order dated 9-8-2018 is subject matter of challenge before this Court in the instant application.

4. Learned counsel for the applicant has submitted that the complaint presented by the applicant is not maintainable as prior mandatory statutory 15 days’ notice has not been served on the applicant by the respondent. From the averments of the complainant itself, it is apparent that the notice sent by the respondent/complainant through registered post before instituting the complaint was returned unserved to the respondent and thereafter he did not make any further attempt to serve the notice to the applicant and filed the complaint. The acknowledgment card of the registered post of said notice, clearly shows that there are no signatures or acknowledgment of the applicant or anyone else on the same. Further, the postal remarks on the envelope of such registered post also have remarks “Praptkarta Aseemit Samay Ke Liye Bahar Gaye Hain, Atah Wapas” , which does not show that it is served on the applicant. Despite this, the court below entertained the complaint and had taken cognizance against the applicant clearly ignoring this aspect of law and fact. It is also submitted that the said cheques were returned by the bank with the remarks “Kindly contact drawer/drawee bank and pleasen”. The said reason for return of the cheques is not contemplated under section 138 of N.I. Act and the cheques have actually never been dishonored. Actually the respondent was instructed by the bank to contact the drawer/drawee bank but the respondent without contacting the bank and without presenting it again has preferred the present complaint, therefore, the complaint filed by the respondent, cognizance order and entire criminal proceedings pending