The statutory notice under Section 138 of the NI Act must be issued within 30 days of dishonour; failure to comply renders the complaint not maintainable.

ORAL ORDER

This petition is filed by accused Nos.1 to 4 praying to quash the order of cognizance dated 23.12.2022 passed by the learned Principal Civil Judge and JMFC, Hubballi, in C.C. No.8591/2022 for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’, for short) and issuance of process against the petitioners/accused Nos.1 to 4.

2. The respondent initiated proceedings against the petitioners for an offence under Section 138 of NI Act. On the complaint filed by the respondent, the learned Magistrate has taken cognizance against the petitioners by order dated 23.12.2022 for an offence under Section 138 of NI Act and registered C.C. No.8591/2022 for the said offence. The said order of cognizance and registration of criminal case has been challenged by the petitioners/accused Nos.1 to 4 in this petition.

3. Heard the learned counsel for the petitioners and the learned counsel for the respondent.

4. Learned counsel for the petitioners would contend that the cheque dated 08.08.2022 said to have been issued by the petitioners to the respondent for a sum of Rs.33,60,000/- has been presented for encashment and it came to be dishonoured and dishonouring intimation has been issued on 16.08.2022. He submits that the respondent got issued a legal notice dated 16.09.2022 to the petitioners intimating dishonour of cheque and demanding payment of cheque amount. Learned counsel for the petitioners submits that the said notice issued dated 16.09.2022 is not within 30 days as required under Section 138 (b) of NI Act. He submits that even if the date of intimation of dishonour i.e. 16.08.2022 is excluded then also the notice issued on 16.09.2022 does not come within 30 days as required under Section 138 (b) of NI Act. On that point, he placed reliance on the decision of Delhi High Court in the case of Deepak Nagar vs. State and another, [ CRL.M.C.1302/2023, CRL.M.A.4999/2023 ]. On these grounds, he submits that the complaint is not maintainable. He submits that the learned Magistrate ought to have dismissed the complaint on that ground itself. With this, he prayed for allowing the petition.

5. Learned counsel for the respondent submits that the parties might have settled the matter and he has to secure information regarding, whether the matter is settled or not. The learned counsel, in spite of giving an opportunity to argue the matter, has not chosen to argue the matter on merits.

6. Having heard the learned counsel for the petitioners, the Court has perused the impugned order and other materials placed on record. The cheque said to have issued by the petitioners dated 08.08.2022 in favour of the respondent for Rs.33,60,000/- has been presented for encashment and it has been dishonoured with reason “Kindly contact drawee/drawee bank and present again” by intimation dated 16.08.2022. After receipt of intimation of dishonour on 16.08.2022, the respondent has got issued a legal notice to the petitioners dated 16.09.2022 intimating dishonour of cheque and calling upon the petitioners to pay the cheque amount. In para 8 of the said legal notice, it is stated that dishonour of cheque has been communicated to the respondent through the bankers cheque return memo dated 16.08.2022. In para 7 of the complaint also it is stated that the dishonour has been communicated to the respondent by Bankers cheque return memo dated 16.08.2022. The Hon’ble Delhi High Court in the case of Deepak Nagar (supra) has observed thus:

“14. In M/s Texco (Supra), this Court observed:-

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8. The questions that arise for consideration in this case are; whether Section 9 of the General Clauses Act, 1897, is applicable to the statutory notice under section 138 of the Act? & whether the day on which the information is received by the complainant from the bank that the cheque has been dishonoured is to be included or excluded while computing the 30-day period prescribed for issuing the statutory notice?

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12.