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TMI Blog2019 (12) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been issued to the petitioner under Sections 138 (1) (b) NI Act. As per the aforesaid provision, the payee or the holder in due course of the cheque, as the case may be, shall make 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 from the bank regarding the return of the cheque as unpaid. As per sub clause (c) Section 138 (1) of the said Act, the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Admittedly, in the present case, notice raising demand for pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plex flat in Niti Khand. Thereafter, on 15.11.2012 the respondent Nos. 3 to 5 through their representative had entered into a written agreement with the wife of the respondent No. 2 for purchasing the property bearing Flat No. 1902, 19th Floor at Indirapuram, Ghaziabad, U.P for the sale consideration of the amount of ₹ 42,50,000/- and out of which a sum of ₹ 20,00,000/- was paid to the respondent Nos.3 to 5 on the same day and remaining amount of ₹22,50,000/- was to be paid at the time of sale deed. Respondent Nos. 3 to 5 started adopting evasive styles for executing the sale deed in favour of wife of the respondent No. 2. On 01.05.2013, respondent Nos. 3 to 5 again entered into an agreement to sell for the sale of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On receipt of said information respondent No. 2 issued a legal demand notice dated 27.07.2015 to respondent Nos. 3 to 5 at their addresses. On 01.09.2015, a complaint was filed by respondent No. 2 before the concerned court, and the said court, without application of mind, issued summons on 01.10.2015. A perusal of the document from the Registrar of Companies shows that from 22.04.2015 onwards, the petitioner is neither a Director nor any cheque dated 06.05.2015 bears his signature. Further, the agreement to sell is also silent regarding participation of the petitioner. Learned counsel for petitioner submits that the complaint against the petitioner is wholly illegal in as much as it is gross violation of the provision of Section 138(1) (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 6. Admittedly, in the present case, notice raising demand for payment has not been issued to petitioner by the complainant. Thus, as per the statute, to fasten a liability upon the accused/petitioner, it was mandatory to issue a notice to him under the aforesaid Act, that too within the stipulated period. 7. Reliance in this regard has been placed on the judgment passed by coordinate bench of this court in R.L. Varma Sons (HUF) v. P.C. Sharma (2019 SCC OnLine Del 8964) wherein it was held: 34. Since the pre-condition of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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