HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.2041 of 2009 ORDER: Heard Smt.A.Gayathri Reddy, learned counsel for the petitioner, Sri T.Rajendra Prasad, learned counsel for the first respondent, and Sri H.Prahalad Reddy, learned Additional Public Prosecutor for the second respondent. The criminal petition has been filed by the sole accused in C.C.No.28 of 2007 on the file of the VI Additional Judicial Magistrate of First Class, Guntur, to quash the proceedings primarily on the ground of defect in the statutory notice issued prior to the filing of the complaint. The complainant alleged that out of the transaction for supply of diesel by the complainant to the accused, Rs.15,08,576/- became due by 07.09.2006 apart from interest and after several demands, the accused issued cheque bearing No.000825 on 12.09.2007 for Rs.15,00,000/- (Rupees Fifteen Lakhs only) which was dishonoured when presented. The complainant further claims that legal notice was issued on 07.11.2007 about the dishonour on 16.10.2007 and the accused gave a reply on 26.11.2007 for which a rejoinder notice was given by the complainant on 01.12.2007. The complainant claims that the accused committed an offence punishable under Sections 138 and 142 of the Negotiable Instruments Act. What the accused/petitioner herein claims is that no offence under Section 138 of Negotiable Instruments Act is made out even assuming the allegations in the complaint are taken to be true as in the legal notice dated 07.11.2007, the cheque number was mentioned as 509208 for which a reply was given, whereas no notice was received at any time by the accused/petitioner in respect of the dishonour of cheque bearing No.000825. Consequently, the accused seeks quashing of the proceedings against him. A perusal of the criminal petition, the material papers enclosed thereto, the counter affidavit filed by the first respondent, the reply notice and rejoinder notice filed by the first respondent, shows that the legal notice issued to the accused immediately after dishonour of the cheque on 16.10.2007 was in respect of the cheque bearing No.590208 dated 12.09.2007 for Rs.15,00,000/- (Rupees Fifteen Lakhs only) said to have been issued by the petitioner herein, which was dishonoured on 16.10.2007. The demand for payment of the amount due under the cheque within 15 days of receipt of the notice may be in compliance with the statutory requirements and in the reply given by the petitioner herein on 26.11.2007, the petitioner firstly denied the existence of any legally enforceable debt and secondly he clamed that signed blank cheques kept in almirahs of the office might have been snatched away by the complainant and misused. The petitioner specifically denied issuance of any cheque bearing No.590208 dated 12.09.2007 in favour of the complainant. It was in response to that reply notice that the complainant stated in the rejoinder notice dated 01.12.2007 that the cheque issued by the accused was in fact cheque No.000825 dated 12.09.2007 for Rs.15,00,000/- (Rupees Fifteen Lakhs only). Admittedly, prior to 01.12.2007 the petitioner was never informed of the cheque issued and dishonoured being cheque No.000825. While the complainant claims that it was a typographical error in giving the number of the cheque in the original notice that was corrected in the rejoinder notice, which has to be gone into during the trial and not earlier, the legal notice issued within 30 days of dishonour of the cheque was not in respect of the cheque, which is the subject matter of the complaint, while by the time of the rejoinder notice, the period of 30 days from the date of communication of dishonour expired long back. Section 138 proviso (b) of the Negotiable Instruments Act mandates that the payee or the holder of cheque, as the case may be, should make a demand for the payment of the amount of money under the cheque by way of giving a notice in writing to the drawer of the cheque within 30 days of receipt of information by him from the bank regarding return of the cheque as dishonoured. Otherwise, it is clear that nothing contained in Section 138 of the Negotiable Instruments Act applies to such a cheque. The liability under Section 138 of the Negotiable Instruments Act can be fastened without any mens rea and when the offence is sought to be punished irrespective of any guilty state of mind of the accused, the compliance with the statutory formalities under the said provision must be strictly necessitated. As the provision imposed criminal liability which can be fastened to the accused only on proof of the offence beyond all reasonable doubt and as specific periods were prescribed for the presentation of the cheque to the bank, issuance of a notice demanding payment and the liability of the drawer of the cheque to make payment on receipt of such notice, the said periods can be considered as salutary and inviolable before fastening any liability to the accused. Though such an error may be technical, in view of nature of the liability, even technicalities would matter on the admitted facts and the complaint cannot be said to be in due compliance with the statutory requirements of Section 138 of Negotiable Instruments Act as it was only in the rejoinder which was issued much later to the expiry of 30 days from the communication of the dishonour of the cheque to the complainant the amount concerning the cheque said to have been issued by the accused was demanded to be paid. The complaint has to, therefore, fail. Accordingly, the proceedings in C.C.No.28 of 2007 on the file of the VI Additional Judicial First Class Magistrate, Guntur, against the accused are quashed and the criminal petition is allowed. But, it is made clear that any observations made in this order shall not influence the determination of any claim that may be made by the first respondent against the petitioner herein for recovery of the amount in any appropriate proceedings as permitted by law. ___________________ G.BHAVANI PRASAD 22nd JULY, 2009 SUR