2024 (11) TMI 709

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....1.08.2023 passed by the High Court of Judicature at Allahabad in Application No.29097/2023 by which, the application was allowed and the summoning order dated 09.12.2019 passed by the Chief Judicial Magistrate, Gautam Budh Nagar in complaint case No.1701 of 2022 filed under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I. Act" for short), Police Station-Knowledge Park, Gautam Budh Nagar, Uttar Pradesh was quashed, the appellant has preferred this Appeal. 3. We have heard learned counsel for the respective parties and perused the material available on record. 4. Briefly stated, the facts are that a cheque issued by respondent No.2-accused dated 16.08.2019 for a sum of Rs.16,50,000/- was dishonoured on 04.09.2019. Conseque....

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....ection 138 of the N.I. Act, when on lapse of fifteen days there was no payment made by the accused- drawer of the cheque, the cause of action had arisen. In the instant case, the legal notice was issued on 30.09.2019 which was received by respondent No.2-accused on 01.10.2019 which fact is not disputed by the other side. But within a period of fifteen days there was no payment of the amount stated in the cheque being Rs. 16,50,000/-. Instead, an untenable reply was issued by respondent No.2 on 16.10.2019 which gave a cause of action to the appellant-herein to file the complaint within a period of one month from the said date and the complaint was accordingly filed on 23.10.2019. The summoning order dated 09.12.2019 was rightly issued by the....

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....n offence and shall, without prejudice to any other provision 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 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 thirty days of the receipt of information by him ....

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....ted; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." 9. On reading of proviso (c) to Section 138 as well as clause (b) of sub-section (1) of Section 142 of the N.I. Act, it becomes clear that the cause of action for the complainant to maintain a complaint arises when within fifteen days from the receipt of the notice issued by the complainant, there is no payment of the amount stated in the cheque which has been dishonoured. On the said cause of action arising, a complaint would be maintainable within a period of one month as per clause (b) of sub-section (1) of Section 142 of the ....