IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42662 of 2007 LALLAN KUMAR SINGH SON OF SRI ARUN KUMAR SINGH RESIDENT OF VILLAGE PANAPUR, MUZAFFARPUR, P.S.- BIRPUR, DISTRICT- BEGUSARAI. Versus 1. THE STATE OF BIHAR 2. NAVIN KUMAR SINGH, S/O- RAMCHANDRA PRASAD SINGH R/O- ASHOK NAGAR, POKHARIA, P.S.- TOWN, DISTRICT- BEGUSARAI. For the petitioner : Mr. R.B.S.Pahepuri, Advocate Mr. Amitabh Bhardwaj, Advocate For the O.P. : Mr. Ravi. S. Pankaj, Advocate Mr. Dr. Amrendra kumar, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 3 19.08.2010 Heard both sides. Petitioner is accused of Complaint Case no. 1963C of 2005 instituted under Section 138 of Negotiable Instruments Act,, 1881. It is stated that the complaint only indicates oral notice to the accused about dishonour of the cheque issued by the accused. Learned counsel further states that the complainant has accepted in his solemn affirmation that no written notice was ever given to the accused before filing the present complaint. It is thus submitted that the entire proceeding including order taking cognizance dated 16.1.2006 is vitiated in law. Learned counsel for the complainant, on the other hand, submits that the complaint itself indicates that on several occasions, the accused were apprised about the dishonour of the cheque but he failed to make payments of the same either in cash or by issuing another cheque. I have considered the submissions advanced on 2 behalf of the parties. Section 138 of the Negotiable Instruments Act reads as under: “138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque 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 fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.” (underlined provided by the Court) Section 142 of the said Act confers power on the Court 3 to take cognizance which reads as under: “142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] A bare perusal of the provision contained in Section 138 of N.I. Act indicate that the issue of written notice to the accused enabling him an opportunity to either pay the cheque value or respond to the notice giving any explanation is a sine qua non. In absence of said notice, cognizance of the offence cannot be taken under the scheme of the Act. Admitted position is that the written notice regarding the dishonour of the cheque issued by the O.P. no. 2 was not given. Law on this regard is very clear. In fact, the sections quoted hereinabove are explicitly clear on this issue. In absence of written notice in terms of the provisions contained in Section 138 of N.I. .Act, no cognizance can be taken. Present is a case where admittedly no such notice was given to the accused and as such this Court is inclined to interfere with the order. Consequently, the application is allowed. Impugned 4 order dated 16.1.2006 is quashed and set aside. This quashment shall not preclude the complainant (O.P. no. 2) from instituting a fresh proceeding. Learned counsel for O.P. no. 1 at this stage submits that the time consumed in present prosecution shall not come in his way in filing the subsequent complaint in accordance with law. He may raise the said issue in accordance with law of Limitation. pkj ( Kishore K. Mandal, J. )