1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Crl. Miscellaneous Petition No.1662/2007 (Surendra Kumar Sharma Vs. Satyaveer Puniya & Anr.) Date of Order : 12.03.2010 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Anoop Dhand, for the petitioner. Mr.Pankaj Gupta ] Mr.Amit Poonia ], for the respondents. By the Court: By this criminal miscellaneous petition, a challenge has been made to the criminal complaint No. 35/2005 with a prayer that same is not maintainable accordingly, the order dated 08.01.2007 (Annex.7) may be quashed and set aside. Coming to the facts, it is stated that petitioner had given a cheque of Rs.50,000/- to the non-petitioner, which was dishonored by the Bank on its presentation. The petitioner received a notice under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act of 1881”) on 06.11.2004. It was otherwise dispatched by the complainant on 03.11.2004. On receipt of the notice, the petitioner prepared a demand draft of equivalent amount on 17.11.2004 and dispatched the same to the complainant through the Registered Post on 18.11.2004. The demand draft was received by the complainant in such a manipulated manner that receipt is shown to be on 16th of the day. The amount of demand draft was, however, withdrawn by the complainant and thereupon, 2 he maintained a complaint under Section 138 of the Act of 1881. The petitioner moved an application before the Court below that in the facts and circumstances mentioned above, the complaint is not competent, however, the said application was rejected. The Court below mainly considered the fact that defence can be considered at this time, ignoring the judgment of this Court as well as the Supreme Court in that respect. Reference of the judgment of this Court in the case of Rajesh Sarvaiya Vs. M/s. Nikki Chemical Industries reported in 2010(1) Cr.L.R. (Raj.) 108 has been given. Learned counsel for the respondents on the other hand submit that amount of cheque was not received within the time given under the provisions of Section 138 of the Act of 1881, thus the complaint was rightly maintained. Taking note of the aforesaid, the application moved by the petitioner was rejected. I have considered the submissions made by the learned counsel for the parties and scanned the matter carefully. During the course of arguments, learned counsel for the respondents was asked as to why the demand draft was encashed, if the amount was received after the expiry period given under Section 138 of the Act of 1881 and if the amount is withdrawn, whether the complaint under Section 138 of the Act of 1881 can be said to be bonafide. Learned counsel for the respondents could not answer the aforesaid. On the facts, if the matter is looked into, then the notice 3 under Section 138 of the Act of 1881 was received by the petitioner on 06.11.2004 and the demand draft was dispatched on 18.11.2004. In view of the aforesaid, I am convinced that the complaint under Section 138 of the Act of 1881 is not competent to be maintained. Perusal of the language of Section 138 of the Act of 1881 shows that if the drawer of the cheque fails to make the payment of amount within the period of 15 days of the receipt of the notice, an offence under Section 138 of the Act of 1881 can be made out. In the present matter, when the demand draft was prepared on 17.11.2004 and was dispatched through the Registered Post, it cannot be said that the payment was not sent to the cheque holder within the time. In view of the aforesaid, I am inclined to accept the petition and accordingly, the prayer made in the petition is accepted. The order dated 08.01.2007 is set aside so as the proceedings pursuant to the criminal complaint No.35/2005. The criminal miscellaneous petition is allowed accordingly. (M.N. BHANDARI),J. Preety Item NO.34