JUDGMENT Hon’ble Vijay Prakash Pathak, J.—The present application under Section 482 of Cr.P.C. has been filed by the accused-applicant Vijay Kumar Upadhyay with the prayer to quash the criminal complaint No. 13 of 2009 Sureshji Rajpoot @ Suresh Chandra Rajpoot v. Vijay Kumar Upadhyay, under Section 138 Negotiable Instrument Act, (herein after referred to as the Act) Police Station Nawabad, District Jhansi, pending in the Court of Additional Chief Judicial Magistrate, Court No. 8, Jhansi and also to quash the summoning order dated 17.2.2010 passed in the aforesaid complaint. 2. The facts of the case are that opposite party No. 2 Sureshji Rajpoot @ Suresh Chandra Rajpoot filed a complaint against the applicant with the allegations that the complainant (opposite party No. 2) and the accused (applicant) were neighbors being Shiksha Mitra. The complainant was also doing the work of agriculture and Tent House alongwith the job of Shiksha Mitra. The accused asked for an amount of Rs. Two lakhs from the complainant for placing a brick-kiln. The complainant, being a friend gave Rs. 1,75,000/- on 30.6.2009 to the applicant, who on the very same day issued a cheque drawn on his account in State Bank of India, Jhansi as security and towards payment of the said amount to the complainant. He also assured that as and when he receives the advance of the bricks, then within ten days he shall make payment. But when the complainant came to know in the second week of July, that the accused had already taken an advance of bricks but did not pay back the said amount, the complainant presented the said cheque in his account which was dishonoured by State Bank of India main branch, Jhansi due to insufficient funds. Thereafter, the complainant went to the accused-applicant, for his money but he asked for more time of three months. Thereafter, the complainant again presented the said cheque for payment, which was again dishonoured on 17.11.2009 due to insufficient funds, about which he was informed by the bank on 23.11.2009. Thereafter, the complainant went to the accused-applicant, for his money but he asked for more time of three months. Thereafter, the complainant again presented the said cheque for payment, which was again dishonoured on 17.11.2009 due to insufficient funds, about which he was informed by the bank on 23.11.2009. Thereafter, the complainant sent a legal notice on 7.12.2009, through his counsel Sri M.K. Parashar, Advocate and also sent the notice by UPC, which was received by the accused on 8.12.2009 but after seven days he returned the notice (sent by registered post) in collusion with the postman endorsing therein that the receiver was out of station and when he still did not pay the amount within 15 days i.e. up to 22.12.2009, the complaint was filed. 3. After receiving the said complaint, the learned Additional Chief Judicial Magistrate, Court No. 8, Jhansi recorded the statement of the complainant under Section 200 Cr.P.C. on 21.1.2010 and after considering the entire materials available on record, the learned Magistrate, vide order dated 17.2.2010, summoned the accused-applicant to face trial for the offence punishable under Section 138 of the Act finding prima-facie case against him. 4. In the petition, it has been averred that the condition imposed by proviso (b) & (c) to Section 138 has not been complied with by the opposite party No. 2 as the complaint was filed on 23.12.2009, the legal notice was sent to the applicant on 7.12.2009 and was returned back to opposite party No. 2 with the endorsement of postman dated 15.12.2009 to the effect that the applicant was out of station. Assuming that the said legal notice was served upon the applicant, then it was served on 15.12.2009, when the postman had endorsed his report and the complaint was filed on 23.12.2009 and as such the said complaint was filed before expiry of the statutory period of 15 days and thus the complaint was not maintainable under Section 138 of the Act. It is also averred that the cheque was firstly returned on 22.7.2009 as dishonoured on the ground of insufficient fund but after 22.7.2009, no notice was given by the opposite party No. 2 as required under proviso (b) to Section 138 of the Act. 5. It is also averred that the cheque was firstly returned on 22.7.2009 as dishonoured on the ground of insufficient fund but after 22.7.2009, no notice was given by the opposite party No. 2 as required under proviso (b) to Section 138 of the Act. 5. In the counter-affidavit filed by opposite party No. 2, it has been averred that the cheque presented in the bank by opposite party No. 2 was dis-honoured by the concerned bank with memorandum dated 22.7.2009 and subsequently, it was dishonoured again which was informed on 17.11.2009 and as the accused-applicant has not met out his liability of payment of Rs. 1,75,000/- to the opposite party No. 2, hence he is liable to be punished under Section 138 of the Act. It is also averred that the applicant and opposite party No. 2 were friends and due to said relationship the opposite party No. 2 had given Rs. 1,75,000/- as advance/loan to the accused-applicant as he had promised that after getting advance of bricks from its customer from the said brick-kiln, he will return the said amount which was given by the opposite party No. 2 within a period of ten days but the accused applicant failed to do so. Then a cheque amounting to Rs. 1,75,000/- which was given by the accused to opposite party No. 2 as security was presented by the opposite party No. 2 and the same was dishonoured. It is further averred that the opposite party No. 2 presented the said cheque for its encashment to his banker on 14.7.2009 and the same was dishonoured due to insufficient fund, which was informed to him, vide bank memorandum dated 22.7.2009. After receiving said information given by the bank, the opposite party No. 2 personally met the accused applicant, who requested to wait for a further period of three months and on the said assurance of the accused applicant, the aforesaid cheque was again presented for encashment after three months and was again dishonoured, which was informed to him vide memorandum of the concerned bank dated 17.11.2009. Thereafter, opposite party No. 2 sent a legal notice to the applicant by two modes on the same day i.e. on 7.12.2009, firstly by UPC (under postal certificate) which was served upon the applicant on 8.12.2009 and secondly by registered A.D. on his correct address which was refused and was not received either by the applicant or his family members. Thus, it may be presumed that deemed service has been made upon the applicant and thereafter the complaint was filed on 23.12.2009 on which the learned Magistrate has taken cognizance vide order dated 17.2.2010 while summoning the accused-applicant for the said offence under Section 138 of the Act. 6. I have heard learned counsel for the applicant, learned counsel for opposite party No. 2 as well as learned AGA. Learned counsel for the applicant has mainly contended that that the said cheque was issued as a security cheque, which is not covered under Section 138 of the Act as according to said Section the cheques issued in discharge of liability or debt only are covered but issuance of security cheque is not covered, hence, the complaint itself was not maintainable and the entire proceedings in pursuance there of are illegal and without jurisdiction. It is further contended that due to dishonour of cheque at the first time on 22.7.2009, the cause of action arose but no complaint was filed and once the cause of action has arisen, it cannot arise for a second time when the cheque was dishonoured again on 17.11.2009. It is also contended that the legal notice was sent on 7.12.2009, which was returned with the endorsement of the postman dated 15.12.2009 to the effect that the applicant was out of station and assuming that the said legal notice was served upon the applicant, then it was served only on 15.12.2009, hence the filing of complaint on 23.12.2009 was premature. 7. On the other hand learned counsel for the opposite party No. 2 has contended that when the cheque was dishonoured for the first time on 22.7.2009, no legal notice was given and hence no cause of action had arisen. The cause of action arose only when the presentation of cheque was made for the second time and was dishonoured on 17.11.2009 for which a legal notice was given on 7.12.2009, which was served upon the accused applicant on 8.12.2009. The cause of action arose only when the presentation of cheque was made for the second time and was dishonoured on 17.11.2009 for which a legal notice was given on 7.12.2009, which was served upon the accused applicant on 8.12.2009. Thereafter, the complaint was filed on 23.12.2009 which was very well maintainable. It is also contended that the said cheque was issued not only as security but for payment also. Hence, it is very much covered under the purview of Section 138 of the Act. 8. I have considered the aforesaid arguments advanced on behalf of the rival parties and perused the record. So far as cause of action is concerned, the said cheque was dishonoured firstly on 22.7.2009, vide memorandum of the State Bank of India, due to insufficiency of funds. At that time, no legal notice for payment of amount was sent by the complainant as required under proviso (b) of Section 138 of the Act, hence no cause of action to file complaint was created. The cheque was again presented by the complainant and was again dishonoured due to funds being insufficient in the account of the applicant, which was informed vide memorandum dated 17.11.2009 of State Bank of India and then the legal notice was sent by the complainant on 7.12.2009. In my opinion, only when the legal notice was sent in view of proviso (b) to Section 138 of the Act and failure of the drawer of such cheque to make payment within 15 days of the receipt of the said notice in view of proviso (c) of Section 138, the cause of action arose, hence, it cannot be said that it had arisen for the second time. 9. According to allegations in the complainant, the notice sent by opposite party No. 2 on 7.12.2009 was served upon the accused applicant on 8.12.2009 and the notice sent through registered post A.D. was returned back. A perusal of record shows that on the registered A.D. there is endorsement of the postman to the effect that the receiver was not met and his family members informed that he was out of station. The said endorsement was made on 15.12.2009. A perusal of record shows that on the registered A.D. there is endorsement of the postman to the effect that the receiver was not met and his family members informed that he was out of station. The said endorsement was made on 15.12.2009. The said question of receiving of notice or refusal of notice or the endorsement of the postman are disputed question of facts, which can be considered only after perusing the evidence of both the parties during trial and the same cannot be adjudicated upon at this stage by this Court under its extra ordinary jurisdiction under Section 482 of Cr.P.C. 10. Learned counsel for the opposite party No. 2 has also relied upon a judgment of the Hon’ble Apex Court given in Narsingh Das Tapadia v. Goverdhan Das Partani and another, AIR 2000 SC 2946 . In the said verdict the Hon’ble Apex Court has been pleased to observe that the complaint filed before expiry of notice period contemplated by Section 138 (c) of the Act cannot be dismissed as premature as taking cognizance and filing of complaint are distinct things. 11. In the present matter, the contention on behalf of the applicant is that notice sent on 7.12.2009 was returned back with the endorsement dated 15.12.2009 of the postman that the applicant was out of station and the complaint was filed on 23.12.2009, hence, it was premature but learned counsel for the complainant has averred that the notice sent by UPC was served on 8.12.2009, hence the complaint filed on 23.12.2009 was not premature and even if it was found premature, it cannot be dismissed on this ground as has been held by the Hon’ble Apex Court in the aforesaid verdict Narsingh Das Tapadia v. Goverdhan Das Partani and another (supra). It has already been observed above that the matter of service of notice or refusal or endorsement of the postman are question of facts, which can be adjudicated only after perusing the evidence of the parties during trial, hence, this Court cannot adjudicate the said aspects at this stage. 12. The main contention which has been raised by learned counsel for the applicant is that the alleged cheque was issued as a security cheque which is not covered under Section 138 of the Act. 12. The main contention which has been raised by learned counsel for the applicant is that the alleged cheque was issued as a security cheque which is not covered under Section 138 of the Act. In support of his contention, he has cited a verdict of the Hon’ble Apex Court given in Sudhir Kumar Bhalla v. Jagdish Chand and others, 2009 (64) ACC 209. In the said verdict the Hon’ble Apex Court has been pleased to observe that the High Court has not addressed itself on the legal question raised before it by the appellant that the criminal liability of appellant under the provisions of Section 138 of the Act are attracted only on account of dishonour of cheque issued in discharge of liability or debt but not on account of issuance of security cheques. Hence, the matter was remitted to the High Court. 13. In the present matter, the money was advanced on 30.6.2009 and the cheque was issued by the applicant on 30.6.2009 itself as security and towards payment of the said amount as alleged in the complaint. In counter-affidavit filed on behalf of the complainant opposite party No. 2, it has specifically been stated in para 5 that the said cheque was given by the accused-applicant to the opposite party No. 2 as security, which was presented for encashment and the same was dishonoured. In view of the said facts, it is apparent that the said cheque was issued as a security cheque and in view of Section 138 of the Act, if the cheque issued for 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, the same shall be deemed to be considered an offence. The security cheques issued for any amount is not covered in the said Section. 14. From a bare reading of Section 138 of the Act, it is clear that the provisions of the said Section are attracted only on account of dishonour of cheque issued in discharge of liability or debt and not on account of issuance of security cheques. Hence, the issuance of security cheques is not covered under the aforesaid Section 138 of the Act. Hence, the issuance of security cheques is not covered under the aforesaid Section 138 of the Act. As the security cheques are not covered under the said Section, so in the present matter the bouncing of cheque, which was issued as a security cheque, is not punishable under Section 138 of the Act, hence, the criminal proceeding against the accused applicant for dishonour of cheque cannot go on and accordingly the filing of complaint under Section 138 of the Act in the present matter and summoning order passed by the learned Magistrate and further proceedings in pursuance thereof are nothing but an abuse of process of the Court, which are liable to be quashed. Accordingly, this petition is allowed and Crl. Compliant No. 13 of 2009 alongwith the summoning order dated 17.12.2010 passed by the learned ACJM, Court No. 8, Jhansi in the aforesaid complaint case and the entire proceedings in pursuance thereof against the applicant are hereby quashed. ——————