9911796707
TMI Blog2014 (7) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to argue this case. Learned Additional Advocate appearing on behalf of the State is present. On 22.4.2014, the following order was passed by the another Bench of this Court:- "List has been revised. Learned counsel for the applicant is not present. Sri Deepak Kumar Verma holding brief of Sri S.R. Verma, learned counsel for the opposite party no. 2 is present. A perusal of the record shows that on 8.3.2010 an order was passed for staying further proceedings of Case No. 956 of 2009, under Section 138 N.I. Act, pending in the court of M.M. Xth, Kanpur Nagar till the next date of listing but the order sheet shows that after 8.3.2010, the interim order dated 8.3.2010 was not extended. In the meantime, an application dated 10.7.2011 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sented, for encashment the same were returned back from the Bank with the endorsement 'Insufficient Fund' on 4.10.2006. The complainant had given notice to the applicant on 13.10.2006 through his counsel with registered A.D. Post for payment of the total amounts of cheques Rs. 1,85,000/- within fifteen days from the date of receipt of notice. Despite the service of notice, neither payment was made nor any reply was given by the applicant. Hence, the opposite party no. 2 had left no other alternative remedy but to file a complaint against the applicant under Section 138 of the Act. The applicant has challenged the aforesaid proceeding by filing the present 482 Cr.P.C. Petition at the time of admission while obtaining interim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant had filed the complaint against the applicant. Hence there is no illegality or perversity in the order summoning the applicant to face trial. On the basis of the aforesaid facts, to decide the controversy the relevant provision prescribed U/S 138 and 142 of the Act is necessary to state which reads as under :- "138. Dishonor of cheque for insufficiency, etc., of funds in the accounts. 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the cheque; (b) such complaint is made within one month of the date on which the cause -of- action arises under clause (c) of the proviso to section 138. (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." In the light of the language used in Section 138, this court finds five components in section 138, namely, 1. Drawing the cheque, 2. presentation of the Cheque to the bank, 3. returning the cheque unpaid by the drawer bank, 4. given the notice in writing to the drawer of the cheque demanding payment of the amount and 5. failure of the drawer to make payment within fifteen days of the receipt of the notice. Thus, the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Section 142 N.I. Act. Thus it is an admitted fact that the cheque was given by the applicant in favour of the complainant and when the cheque was presented for encashment the same was returned by the bank with the endorsement of insufficient fund on 4.10.2006. The complainant given the notice to the applicant on 13.10.2006 through his counsel within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The applicant failed to make the payment in due course of the cheque amount within fifteen days of the receipt of the said notice and after expiry of the statutory period of notice as provided under Section 138-C, the cause of action accrued to the complainant to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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