IMPORTANT POINT
Complaint based on time-barred notice cannot be allowed to continue.

Mohammad Yaqoob Mir, J.—The respondent is dealing with the business of wholesale foot-wear items with principal place of business at Qamarwari under the name and style of “New World Line Footwear”. Petitioner is proprietor of a retail footwear shop being run under the name and style of “Catwalk” situated at Regal Chowk, Srinagar.

2. Petitioner purchased the footwears and issued 12 cheques on different dates bearing serial Nos. 12776350 to 1277636l. The respondent presented the said cheques in Jammu & Kashmir Bank Ltd. Branch Office Residency Road, Srinagar. 11 Cheques bearing serial Nos. 12776350 to 12776360 were returned unpaid with memo dated 6.1.2009 carrying endorsement to the following effect “not sufficient” whereas 12th cheque bearing serial No. 12776361 was returned unpaid with memo dated 23.l.2009 carrying endorsement “not sufficient”.

3. Respondent has issued notice of demand under Section 138 of the Negotiable Instruments Act (hereinafter referred to as NI Act) on 5.2.2009. When the amount was not paid, respondent filed a complaint of which cognizance has been taken and process issued. The said complaint, in view of non appearance of the parties, was dismissed on 31st May, 2011 but said dismissal order was challenged by the respondent by medium of a revision petition which has been allowed by the Court of 1st Additional Sessions Judge, Srinagar vide judgment dated 28.12.2011 holding therein that the complaint could not be dismissed for default for the reasons as recorded in the judgment. As a result thereof, complaint has been taken up for further proceedings by the trial court.

4. Petitioner by virtue of this petition filed under Section 561A, Cr.P. C. has projected that when the cheques were returned unpaid, the respondent was required to issue notice of demand within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid. Admittedly the respondent had received information from the bank about return of 11 cheques bearing serial Nos. 12776350 to 12776360 on 6.l.2009, so notice of demand should have been issued up to 4th February, 2009. With regard to 12th cheque bearing No.12776361, information regarding return of the cheque as unpaid, admittedly was received by the respondent on 23.1.2009.

5. Learned counsel for the petitioner would contend that the respondent has issued a composite notice of demand under Section 138 clause (b) to the proviso of NI Act on 5.2.2009. Notice of demand vis-a-vis 11 cheques is issued after the stipulated time. It being so, the Magistrate should not have taken the cognizance as the notice was barred by limitation. In support of this contention, learned counsel has relied on the judgment rendered by Hon’ble Apex Court in the case Sivakumar v. Natarajan, Criminal Appeal No. 1077 of 2009. and also on the judgment rendered by the High Court of Delhi in the case Dheeraj Jain v. State & Anr., Crl. M.C. No. 3426/2011 & Cri. M.A. No. 12164/2011: 2012 Cri. LJ (NOC) 496 (Del.).; wherein quashment of the proceedings before the trial court was sought on the ground that the legal notice was given beyond 30 days of the knowledge of dishonour of cheques.

6. Counsel for the respondent in opposition would contend that the object of NI Act cannot be permitted to be frustrated on hyper technical grounds. That apart, according to him, the notice of demand has been issued within time.

7. While considering rival submissions and the record, the admitted position as has emerged is that 11 cheques bearing Nos. 12776350 to 12776360 have been returned unpaid as intimated to the respondent on 6.1.2009. The notice of demand was required to be issued within 30 days, as is the mandate of Clause (b) of Proviso to Section 138 of NI Act.

8. In the judgment Sivakumar v. Natarajan, rendered by the Hon’ble Apex Court on 15th May, 2009, the position of issuance of notice of demand and knowledge regarding cheque having been returned unpaid is identical. In the said judgme