RISHIPAL @ SRIPAL Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the petitioners and the learned AGA for the State and perused the record.

(2.) The learned counsel for the petitioners submitted that the offence under section 138 of the Negotiable Instruments Act (in short "the Act") was not made out in view of the fact that the complainant had not served any legal notice on petitioner no. 1, therefore, dishonour of cheque does not create any liability on the petitioner no. 1 but the learned Magistrate over looked this aspect of the matter and passed the impugned order. It was also submitted that the impugned cheque was not tendered in the Bank withing the statutory period of six months but was tendered after one year. The learned counsel for the petitioners relied on the case of Rajiv Kumar v State of U.P., 1991 CrLJ 3010. The service of notice is mandatory as contemplated by section 138 (b) of the Act. If notice is not served, the prosecution can not lie under section 138 of the Act, therefore, it is one of the essential ingredients to constitute the offence under setion 138 of the Act, therefore, the learned Magistrate was required to see whether or not the aforesaid notice was served on the petitioner no. 1 before issuing the process.

(3.) It was next submitted that in the absence of notice the offence under section 138 of the Act was not made out.