Hon’ble Shri Kant Tripathi, J. : 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 Cri.L.J. 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.4. So far as other offences are concerned, a prima facie material was available on the record and the learned Magistrate after taking into consideration found sufficient ground to proceed with the complaint under sections 406, 452, 323 and 506 IPC, therefore, the complaint with regard to the these offences was maintainable. So far as the offence under section 138 of the Act is concerned, the trial court is expected to consider the aforesaid submissions of the petitioner no. 1 at the stage of charge.5. In view of the facts and circumstances of the case and the submissions of the learned counsel for the petitioners and the learned AGA, I do not consider it proper to interfere with the matter.6. 1 at the stage of charge.5. In view of the facts and circumstances of the case and the submissions of the learned counsel for the petitioners and the learned AGA, I do not consider it proper to interfere with the matter.6. The learned counsel for the applicants further submitted that the applicants being law abiding citizens, intend to appear before the courts below to seek bail, therefore, they may be provided some interim protection.7 Keeping in view the facts and circumstances of the case, it is provided that in case the applicants Rishipal alias Sripal, Narendra and Meeun appear before the courts below within one month from today and apply for bail in the case no. 119 of 2010 (Radha Krishna Pandey v Rishipal alias Sripal & others), under sections 138 of the Act, 406, 452, 323 and 506 IPC, P.S. Kotwali Nagar, District Bulandhshahr pending in the court of the learned Judiciaol Magistrate/Additional Civil Judge (Junior Division), Court No. 1, Bulandshahr their bail prayer shall be considered and disposed of by the courts below in the light of the principles laid down by the Seven Judge Bench of this Court in Amrawati and another vs. State of U.P., 2004 (57) ALR 290, as affirmed by the apex court in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (2) Crime 4 (SC).8. In case disposal of the bail application on the same day is not possible due to any reason, in that event, the applicants may be released on interim bail till the disposal of the bail application on merits.9. Till the surrender of the applicants before the court or expiry of the aforesaid period of one month, whichever is earlier, the applicants shall not be arrested.10. With the aforesaid observations, the petition is disposed of finally._________