ORDER

This Petition has been filed under Section 482 of the Code of Criminal Procedure seeking to call for the records and quash C.C.No. 485 of 2015 now pending on the file of Metropolitan Magistrate IV FTC, George Town, Chennai.

2. The petitioner is the accused in the said calendar case. The respondent had filed a private complaint against the petitioner for offence under Section 138 of the Negotiable Instrument Act.

3. It is the case of the respondent that the parties had entered into a business arrangement and the respondent had received a sum of Rs.10,75,000/- as investment in the business. There were some negotiations and it was agreed to reduce the amount to Rs.8,75,000/-. The petitioner had issued four cheques all dated 11.12.2014. The cheques were dishonoured.

Notice was issued and thereafter, the complaint was filed.

4. It is claimed by the petitioner that the cheques were dishonoured on 13.12.2014 and notice should have been issued in accordance with the proviso of Section 138 of the Negotiable Instruments Act 1881 within a period of 30 days. However, the notice in the instant case had been issued on behalf of the respondent on 13.01.2015 which was after the period of 30 days. It was therefore contended that the complaint is not maintainable and consequently, the calendar case should be struck off or rather quashed. 5. Heard arguments advanced by Mr. M.Mohammed Rafi, learned counsel for the petitioner and Ms. S.Thamizharasi, learned counsel for the respondent.

6. The facts are not disputed. There were some business transactions between the petitioner and the respondent and after negotiations, the petitioner herein was under obligation to pay a sum of Rs.8,75,000/- to the respondent herein. In this connection, the petitioner herein had issued four cheques for a sum of Rs.2/- Lakhs, Rs.2/- lakhs, Rs.1,75,000/- and Rs.3/- lakhs each, all dated 11.12.2014 towards discharge of the said amount of Rs.8,75,000/-. Those cheques were presented for payment. They were returned unpaid on 13.12.2014 with the endorsement “funds insufficient”.

Thereafter, the respondent had issued legal notice on 13.01.2015.

7. The learned counsel for the petitioner Mr.M.Mohammed Rafi pointed out that the notice had not been issued within the period of 30 days as stipulated in proviso (b) to Section 138 of the Negotiable Instruments Act

1881.

8. The learned counsel Ms. S.Thamizharasi for the respondent however contended that the notice had been issued within the period of 30 days and later also contended that the information regarding dishonour of the cheques had been received only on 15.12.2014 and therefore, the notice issued on 13.01.2015 was well within the period of 30 days and therefore stated that the complaint was maintainable and the present Petition seeking to quash C.C.No. 485 of 2015 should be dismissed.

9. Section 138 of the Negotiable Instrument Act is as follows:-

“138 Dishonour of cheque for insufficiency, etc., of funds in the account. —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 [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 holde