(1.) BY this petition the Petitioner seeks quashing of the order dated 23 rd June, 2011 passed by the Learned Metropolitan Magistrate summoning the Petitioner for offence under Section 138 of the Negotiable Instruments Act (in short NI Act) in complaint case No. 4434/2011 titled as "M/S Aramex India Pvt. Ltd. Vs. Intarvo Technologies Ltd. & Ors".
(2.) THE facts giving rise to the filing of the present petition in nutshell are that the Respondent company entered into an agreement with Petitioner No.1 on 6th October, 2009 for providing courier services. It was agreed between the parties that the payments will be made within 30 days on the submission of the bills. THE authorized signatory of the Petitioner No.1 company issued a cheque bearing No. 020161 dated 20th March, 2011 for a sum of Rs. 19,91,770/- drawn on ICICI Bank Ltd., Okhla Phase-I, New Delhi branch on behalf of the Petitioner company in favour of the Respondent company against the invoice raised by the Respondent company. THE said cheque was dishonoured on 23rd March, 2011 and the Respondent/ complainant issued a notice in terms of the requirement of Section 138 Negotiable Instruments Act on 20th April, 2011 which was received by the Petitioner No.1 on 25 th April, 2011. On receipt of the legal notice within the statutory period of 15 days the Petitioner No.1 issued two cheques bearing No. 029342 and 029344 for Rs. 10,00,000/- and 9,91,770/- respectively on 5th May, 2011 towards the satisfaction of the dishonoured cheque No. 020161. For the sake of confirmation of the two new cheques issued, an e-mail was sent by the Petitioner No.1 on 6th May, 2011 to the complainant stating that with reference to their letter received on 25th April the Petitioner had issued two new cheques amounting to Rs. 19,91,770/-. Again on 7th May, 2011 the Petitioner No.1 sent an e-mail to the Respondent stating that they had made the payments against dishonoured cheque on 5 th May and requested to withdraw the legal notice. In response to the above said e-mails the Respondent sent an e-mail on 10th May, 2011 acknowledging the payments against the dishonoured cheque i.e. cheque No. 020161 dated 20th March, 1991, however stated that the cheques issued by the Petitioner had been adjusted towards outstanding dues payable to the Respondent and demanding the balance payment. After the said e-mail the Respondent filed the abovementioned complaint on 9th June, 2011 under Section 138 of the Negotiable Instruments Act.
(3.) THE cause of action for an offence under Section 138 Negotiable Instruments Act arises only when on a dishonour of cheque and after receipt of a notice the accused 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 15 days of the receipt of the said notice. In the present case the Petitioners made payment of the said amount within 15 days of the receipt of the notice and hence no cause of action arises under Section 138 Negotiable Instruments Act. THE Respondent by adjusting the said amount to the outstanding dues cannot fasten the criminal liability on the Petitioners for offence under Section 138 Negotiable Instruments Act.