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TMI Blog2018 (11) TMI 1906X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the facts are being narrated from M.Cr.C. No.17894/2018. 3. The petitioner has filed this application under Section 482 of Criminal Procedure Code for quashment of the proceedings under Section 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Indore by which the JMFC has taken the cognizance of the complaint submitted by the respondent on 19/02/2016. 4. The brief facts of the complaint is that the petitioner and respondent had cordial relations with each other and the petitoner was in requirement of money for his personal and business needs and he, therefore, approached the respondent for loan of Rs.5.50 lakhs. The said amount has been given by the respondent to the petitioner in cash in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner by the respondent. He submits that the notice sent by the registered post before instituting the complaint was returned unserved to the respondent. Thus, the complaint is hit by Proviso to Section 138 of the Negotiable Instruments Act, 1881. He submits that the acknowledgment card which is attached by the respondent with the complaint clearly shows that there are no signatures or acknowledgment of the petitioner or anyone else on the same. Further, the postal remarks on the envelope of such registered post also does not show that it is served on the petitioner. Hence, the said notice has not been served on the petitioner. 8. He further argues that the said Cheque was returned by the Bank with remarks "kindly contact drawer/dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment passed by this Court in the case of Jai Kumar Jain Vs. Shriram & Company reported in M.P. Weekly Nortes [1993(II) Note No.224]. 11. Heard learned counsel for the parties and perused the record as well as the order passed by the trial Court. 12. From perusal of the the record, it reveals that the respondent has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Indore alleging that a Cheque of Rs.1.10 Lakhs has been dishonoured. The trial Court has taken the cognizance of the offence and issued summons to the petitioner. After receipt of the summons, the petitioner has filed this application for quashment of the proceedings as well as the order by which the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledgment of the petitioner or anyone else on the same. Further, the postal remarks on the envelope of such registered post also does not show that it is served on the petitioner. 17. The Apex Court in Para - 2 of its judgment in the case of Shakti Travel & Tours(supra), has held as under :- 2. Accused who is the Appellant, assails the order of the High Court refusing to quash the complaint filed under Section 138 of the Negotiable Instruments Act. The only ground on which the learned Counsel for the Appellant prays for quashing of the complaint is that on the assertions made in paragraph 8 of the complaint, it must be held that notice has not been served and, therefore, an application under Section 138 could not have been maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss the petition under section 482 of Cr.P.C. So far as remark of "kindly contact drawer/drawee bank and please present again" is concerned the same would not be a ground for dishonouring of cheque. So far as the judgment relied by the learned counsel for the respondent passed by the Calcutta High Court in the case of Voltas Limited and others (supra) is concerned, the same would not be applicable in the present case because in that case the funds were not sufficient. 20. Thus, in the light of the aforesaid and as per the averments made in the application, the M.Cr.C. No.17894/2018, M.Cr.C. No.17895/2018 and M.Cr.C. No.17899/2018 are allowed. The complaint submitted by the respondent is hereby set-aside. 21. A copy of the order be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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