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2020 (5) TMI 314 - HC - Indian LawsDishonor of Cheque - non-bailable warrant - offence u/s 138 of NI Act - validity of order of summon - HELD THAT:- A dishonour would constitute an offence only if the cheque is returned by the bank ‘unpaid’ either because the amount of money standing to the credit of the drawer’s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises. It is not disputed that neither in the complaint nor in the statement of the complainant recorded under Section 200 Cr.P.C., is it mentioned as to on which dates, he has demanded for refund of his money from the applicant, on which date he had presented the alleged cheques in the bank for encashment - The complainant has also not disclosed the date on which he had sent the legal notice to the applicant through his advocate and the date of service of notice. The complainant has also disclosed the date i.e. 3rd July, 2014 on which the dishonoured cheques along with return memo showing “insufficient balance” amount in the account of the applicant, has been received. Thus, it is not clear that one of main ingredient i.e. date of service of notice from which the date the cause of action arises i.e. date of bank return memo as per the provisions of Section 138 N.I. Act is completely missing in the present case - As per Section 138 read with Section 142 N.I. Act, the period of complaint being filed from the date of service of notice i.e. within one month is also not complied in the present case. In the impugned summoning order also the concerned Magistrate has only recorded the date on which the alleged cheques were dishonoured i.e. 3rd July, 2014 and the date of legal notice i.e. 14th July, 2014, which was sent to the applicant but he has not recorded the date on which the legal notice has been served from which the date the cause of action would arise - In view of the provisions of Sections 138 read with Section 142 N.I. Act, the main ingredients are not complied with by the complainant while filing such immature complaint, which is liable to be quashed. Application allowed.
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