2020 (9) TMI 1186

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....on 2.3.2019 were dishonoured on 28.5.2019. The complainant sent a notice on 11.6.2019. He did not received any money and, therefore, on 29.6.2019 he filed the compliant under Section 138 of Negotiable Instrument Act, 1881 which was numbered as Complaint Case No. 441 of 2019. The learned Judge after discussing the dates was satisfied that prima facie case is made out for issuance of notice and likewise on 3.9.2019 passed the summoning order. 4. Learned counsel for the petitioner was put to a question as to how the summoning order passed by the Court below is bad. According to his understanding, he conveys to this Court that there is some judgment of Damodar without citing the same. He states that as per the provisions of Section 138 of the ....

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....lainant wait for 15 days is the question. 7. Section 138 read with Section 142 of the Act, 1881 reads as under: "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....

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....on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138." 8. The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chan....