KAPIL DEV TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned Counsel for the applicant, learned special Counsel appearing on behalf of the complainant and learned AGA.

(2.) SO far as point No. 1 is concerned, it is not in dispute, rather it is admitted by the Counsel for the opposite party No. 2, that cheque dated 13.9.2010 was presented in the bank and intimation of dishonouring of cheque was received on 22.9.2013. Admittedly, the notice of demand issued on 4.11.2010. As such this notice has been issued after lapsed of 30 days from the date of intimation received by opposite party No. 2 of dishonouring of the cheque. Proviso added to Section 138 of the Act makes it mandatory that "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, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid." This requirement is mandatory to constitute offence under Section 138 of the Act which in present case has not been complied with.

(3.) IN this case, a cheque of Rs. 50,000/ - has been issued which was returned unpaid but notice which has been issued on 4.11.2010 (Annexure 3 to this petition) shows that the opposite party No. 2 in this notice demanded within 30 days a sum of Rs. 5,00,000/ - (five lakh) towards damages for social economic and mental harassment and not of the amount of the cheque. In view of the aforesaid notice, it cannot be said that this notice of demand is in conformity to the requirement of Proviso (b) of 138 of the Act. In view of above, the petition succeeds. The proceedings under Section 138 of the Act initiated on the basis of complaint pending in the Court of Chief Judicial Magistrate, Ambedkar Nagar having Criminal Complaint No. 5888 of 2010 (Ankur v. Kapil Dev Tiwari) is quashed.