Jatinder Kumar Chopra vs Harish Kumar

V.K. Bali, J.—The prayer in this petition filed on behalf of Jatinder Kumar and Narinder Kumar, Petitioner, u/s 482 of the Code of Criminal Procedure is to quash the complaint dated 31.1.1991 Annexure P.1 filed u/s 138 of Negotiable Instruments Act and aftermath thereof i.e. the summoning order dated 26.3.1991 (Annexure P.2) passed by Judicial Magistrate, Jalandhar.

Brief facts in support of the contention of the learned Counsel for quashing the complaint are that the two cheques said to have been issued by the Petitioner oh 1.7.90 for Rs. 50,000/- each were presented before the bank and bounced, intimation regarding which was given to the complainant, by the bank concerned on 21.11.1990. despite that, the complainant issued a notice to the Petitioner on 15.12.1990, concededly more than 15 days after the receipt of the information. Proviso (b) to Section 138 of the Act runs like this:

provided that nothing contained in this section shall apply unless:

(a) xx xx xx

(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 within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

If, therefore, a notice is not given within the stipulated period as mentioned in Clause (b) of the proviso attached to Section 138 of the Act, the said section would not apply. As the provision in terms states that nothing contained in this section shall apply unless clause a, b or c are complied. This factual position as has been mentioned above, has not been disputed. In fact no reply has been filed in spite of the fact that the Respondent stands served. No one has put in appearance on behalf of the Respondent today.

For the reasons recorded above, this petition is allowed and the complaint Annexure P. 1 and impugned order Annexure P.2 are quashed.