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TMI Blog2023 (8) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1701 of 2022 (Vijay Veer Vs. Santosh Kumar Srivastava), under section 138 N.I. Act, P.S. Knowledge Park, District Gautam Budh Nagar pending in the Court of Additional Court No.3, Gautam Budh Nagar. 3. Learned counsel for the applicant submits that the impugned summoning order is perverse, in as much as, there is no finding recorded regarding filing of complaint against the applicant in connection with bouncing of the cheques upon the applicant although the same was said to be sent on 30.09.2019. The reply of which was returned on 16.10.2019. He also submits that the applicant in his statement under Section 200 Cr.P.C. had stated that he had sent the notice to the applicant on 30.09.2019 for return of his money but in response to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) " (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed." 5. This Court finds that the law has been well settled by the aforesaid judgement that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused. 6. This Court also finds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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