A statutory notice under Section 138 must be issued within thirty days of receipt of information regarding a cheque's dishonor.

ORDER

The petitioner is the accused in S.T. No.

338/2022 on the file of the Court of Judicial Magistrate First Class, Kolencherry, (‘Trial Court’ for short), which has been filed by the 1st respondent, alleging the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (‘Act’, in short).

2. The 1st respondent had filed Annexure A1 complaint alleging that he and the petitioner were friends and the petitioner used to borrow money from him for his business purposes. On August, 2021, the 1st respondent demanded the petitioner to return back the borrowed amount, pursuant to which the petitioner issued a cheque for a sum of Rs.10,00,000/- dated 29.11.2021, drawn on the Canara Bank. However, the cheque on presentation to the bank got dishonored due to insufficient funds on 01.12.2021. Though the 1st respondent issued a statutory notice to the petitioner on 28.02.2022, the said notice was returned with the endorsement 'returned to sender' on 10.03.2022, but the petitioner failed to pay the demanded amount. Thus, the petitioner had committed the above offence.

3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1st respondent.

4. The learned counsel for the petitioner submits that, going by the admitted averments in Annexure A1 complaint, it is undisputed that the 1st respondent had not issued the statutory demand notice as contemplated under Section 138 (b) of the N.I Act. i.e., the demand for payment of the amount has to be made within thirty days from the date of receipt of the information from the bank regarding the return of the cheque. According to him, though the cheque was returned on 01.12.2021, the 1st respondent has issued the demand notice only on 28.02.2022, which is beyond the statutory period of thirty days. Therefore, the offence under of the N.I. Act is not attracted. Hence, the complaint may be quashed.

5. The learned counsel for the 1st respondent opposes the Crl.M.C. He submits that merely because the statutory notice was not sent within the statutory time period is not a ground to quash the proceedings.

Hence, the Crl.M.C may be dismissed.

6. It is apposite to refer to Section 138 of the Act, which reads as follows:

“Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 60[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, 61[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said