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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 ..... knowledgment 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. 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. The contention of the learned counsel for the respondent that Section 482 of Cr.P.C. is not maintainable is also not sustainable in the light of judgment passed by the Apex Court in the case of PRABHU CHAWLA VERSUS STATE OF RAJASTHAN AND ORS. [ 2016 (9) TMI 1595 - SUPREME COURT] . In the said judgment the Apex Court has held that the alternative remedy of revision under Section 397 of Cr.P.C. cannot by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2016. When the respondent asked for repayment of the said loan amount from the petitioner, discharging his part liability, he gave a Cheque bearing no.077444 dated 22.12.2017 for an amount of Rs.1.10 Lakhs drawn on Indian Bank branch Ushanagar, Indore. When the respondent deposited the said cheque in his Bank at Indore it was returned to him vide bank's return memo dated 17.01.2018 with remarks kindly contact drawer/drawee bank and please present again. 5. It is further alleged in the complaint that due to return of the said cheque by the bank, the respondent sent a legal notice dated 22.01.2018 through registered post dated 23.01.2018 under Section 138 of the Negotiable Instruments Act to the petitioner and the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/drawee bank and please present again . He submits that the reason for return of the said cheque is not contemplated under Section 138 of the Negotiable Instruments Act and the cheque has actually never been dishonoured. The respondent without contacting the bank and without presenting it again has preferred to file the impugned complaint. He further submits that no offence under Section 138 of the Negotiable Instruments Act is made out from the allegations in the complaint and documents filed along with it by the respondent. 9. Learned counsel for the petitioner further relied on the judgment passed by the Apex Court in the case of Shakti Travel Tours Vs. State of Bihar Another reported in (2002) 9 SCC 415. He also relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs as well as the order by which the State has taken cognizance in the matter. The proceedings have been challenged mainly on the ground that statutory notice as provided under Section 138 (1) of the Negotiable Instruments Act has not been duly served on the petitioner. 13. From perusal of the complaint, it reveals that the legal notice was issued by the respondent through registered post dated 22.01.2018. However, the petitioner avoided the notice since 25.01.2018 to 30/01/2018. and, therefore, the said notice was returned unserved to the petitioner. 14. Thus, from the averments made in the complaint itself no notice was served on petitioner as provided under Section 138 (1) of the Negotiable Instruments Act. 15. Proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en served and, therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in paragraph 8, the complaint itself is not maintainable. We accordingly quash the complaint. 18. So far as contention of the learned counsel for the respondent regarding the provisions of General Clauses Act is concerned, he relied on Section 27 of the General Clauses Act, 1897 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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