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TMI Blog2020 (9) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court. In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no' - Reason given by the learned Magistrate is very clear. It is well reasoned order which was passed on 30.11.2019. For a period of one year, the petitioner has chosen not to appear before the learned Magistrate and has moved this Court now. This petition is dismissed with cost of ₹ 15,000/- to be deposited before the Court below. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons as he had already filed reply and the complaint could have been filed only after 15 days of his reply and it was filed before the said date. 5. Learned counsel for the petitioner has submitted that the summoning order is without compliance of provisions of Section 138 of the Act, 1881; the application has been falsely implicated due to enmity and financial dispute with the complainant and that cheques were dishonoured as he had directed stop of payment. It is submitted that respondent No.2 sent notice to the applicant on 11.6.2019 but no date of service of notice have been mentioned in the complaint. The petitioner has submitted that on 25.6.2019 he had replied. The complainant, according to the petitioner, should have waited fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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, 20[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court. 10. Proviso to Section 138 of the Act, 1881 does not constitute ingredients of offence punishable under Section 138. Proviso to Section 138 simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for lodgement of complaint. The Parliament has granted just and proper time to give to the drawer the opportunity to pay the amount before he could be prosecuted. The offence is complete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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