JUDGMENT : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 registered for the offence punishable under Section 138 of the N.I. Act which is now pending in the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat. 3. The brief facts of the case is that the petitioner allegedly issued three cheques i.e., one cheque dated 20.02.2019 for Rs.12,00,000/- and two cheques dated 03.05.2019 for Rs.16,00,000/- each; all the 3 cheques of State Bank of India, Kalunga Branch. The said three cheques were deposited by the complainant with his banker and all the three cheques were returned with the remarks “payment stopped by drawer” on 06.05.2019. The complainant thereafter sent a demand/legal notice to the petitioner but it is the case of the complainant that till today in spite of the said notice, the petitioner neither returned the cheque amount nor gave any reply to the demand notice and the complaint was filed on 14.06.2019. The undisputed fact remains that there is no material in the record to suggest; as to whether the said demand notice for payment of the money allegedly secured by the said three cheques was ever received by the petitioner/accused of the case though it is mentioned in paragraph-4 of the complaint that the three cheques were returned with the remarks “payment stopped by drawer” on 06.05.2019 but learned counsel for the petitioner draws the attention of this Court towards page-22-24 of the brief and submits that the alleged cheque return memos filed by the complainant along with the complaint shows that the cheques were returned on 05.07.2019 i.e. after filing of the Complaint Case No.746 of 2019 which was filed on 14.06.2019. It is stated in the complaint that the complainant sent demand/legal notice to the accused-petitioner on 15.05.2019 but till today the petitioner neither returned the total cheque amounts of Rs.44,00,000/- of the said three cheques taken together nor replied to the demand notice. 4. It is stated in the complaint that the complainant sent demand/legal notice to the accused-petitioner on 15.05.2019 but till today the petitioner neither returned the total cheque amounts of Rs.44,00,000/- of the said three cheques taken together nor replied to the demand notice. 4. Learned counsel for the petitioner further submits that the complaint is pre-mature one as the complaint could have been filed at least after 45 days from the date of issue of the notice as no service report of the said notice upon the accused-petitioner has been filed. In support of his contention, learned counsel for the petitioner relies upon the judgment of this Court in the case of Shyam Sundar Singh @ Shyam Sunder Singh vs. State of Jharkhand & Another reported in 2019 (3) JBCJ 676 (HC) paragraphs-7 of which reads as under:- 7. “It is a settled principle of law that the period of reckoning of 15 days as required under Section 138 (c ) read with section 142 of the N.I. Act in a case where the complainant cannot bring on record any evidence as to when the notice of demand of the cheque amount was received by the accused is to start from the 30th day from the date of dispatch of the demand-cum-legal notice hence the complaint at the earliest can be filed only after 45 days from the date of dispatch of demand notice as has been held by the Hon’ble Supreme Court of India in the case of Subodh S. Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3) SCC (Cri) 834 paragraph no. 25 of which reads as under:- “25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001.” 5. Learned counsel for the petitioner further submits that even the demand notice is also not in accordance with law as the demand notice can only be issued after receipt of the information by the complainant that the cheque has been dishonoured. The complaint petition, therefore, should have been filed by 2-4-2001.” 5. Learned counsel for the petitioner further submits that even the demand notice is also not in accordance with law as the demand notice can only be issued after receipt of the information by the complainant that the cheque has been dishonoured. Learned counsel for the petitioner further draws the attention of this Court to the cheque return memo, the copy of which has been kept at page-22-24 of the brief and the veracity of which remains undisputed and has not been challenged by filing any counter-affidavit by the opposite party No.2 though the case was filed on 20.09.2021 and the opposite party No.2 appeared in this case on 21.03.2022 and submits that the same shows that the cheques were returned on 05.07.2019. Since, as per the claim of the complainant, the demand notice was sent before the cheques were returned i.e., on 15.05.2019. So, the demand notice claimed to be issued by the claimant on 15.05.2019 cannot be termed as a notice as has been envisaged under the proviso under Section (b) of the 138 of the N.I. Act because the same envisages that the demand for the payment of amount of money mentioned in the cheque is to be made by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information from Bank regarding return of the cheque as unpaid. So, the condition precedent for filing of the complaint under Section 138 of the N.I. Act being that the opposite party No.2 must have issued a notice of demand in writing after 05.07.2019 when the banker of the complainant informed the complainant about the cheques have been returned because of payment stopped by the drawer. It is further submitted by the learned counsel for the petitioner that on this score also, the learned Magistrate has committed a grave illegality in taking cognizance dated 20.06.2019. 6. Learned counsel for the petitioner further submits that the printed format of the cheque itself shows that the cheques are valid for Rs.10,00,000/- and under but the amount of cheques mentioned in the three cheques is more than Rs.10,00,000/-, so otherwise also the cheques are not valid cheques in terms of law. 6. Learned counsel for the petitioner further submits that the printed format of the cheque itself shows that the cheques are valid for Rs.10,00,000/- and under but the amount of cheques mentioned in the three cheques is more than Rs.10,00,000/-, so otherwise also the cheques are not valid cheques in terms of law. Hence, it is submitted that the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 which is now pending in the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat, be quashed and set aside against the petitioner. 7. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer for quashing and setting aside the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 and learned counsel for the opposite party No.2 submits that liberty may be given to the opposite party No.2/complainant to set right the shortcomings which have been pointed out by the learned counsel for the petitioner. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 138 of the N.I. Act which reads as under:- “138. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 138 of the N.I. Act which 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 extend 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. (Emphasis supplied) 9. Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. (Emphasis supplied) 9. It is crystal clear from plain reading of Section 138 of the N.I. Act that the drawer of a cheque; if fails to make the payment of the amount of the cheque to the payee within 15 days of the receipt of the demand notice, then the cognizance of the offence can be taken by learned Judicial Magistrate for the offence punishable under Section 138 of the N.I. Act. The question arises what if, there is no document to suggest that the demand notice in writing given by the complainant-opposite party No.2 has been served upon the drawer of the cheque, as has been held by the Hon’ble Supreme Court of India in the case of the Subodh S.Salaskar vs. Jayprakash M. Shah & Another reported in (2008) 13 SCC 689 and which principle of law has been reiterated by this Court in the case of Md. Siraj vs. State of Jharkhand & Another passed in Cr.M.P. No.1677 of 2022 dated 21st of November, 2023; that the law is well settled that in case there is no material to suggest that such demand notice was ever served upon drawer of the cheque or any material that such demand notice has returned unserved within the period of 30 days from the date of the issue of such notice, such demand notice is deemed to have been served on expiry of the period of 30 days from the date of issue of such notice and the cognizance of the offence punishable under Section 138 of the N.I. Act can be taken if the drawer of cheque fails to pay the amount as per the cheque within 15 days of such deemed service of notice. So considering the claim of the complainant that the notice was sent on 15.05.2019 and the complaint was filed on 14.06.2019 without any material to suggest that during that period the petitioner had received notice of demand and 15 days have elapsed after receipt of such notice of demand on or before 14.06.2019, this Court has no hesitation in holding that the complaint is pre-mature, hence, the cognizance is bad in law. 10. 10. As rightly pointed out by the learned counsel for the petitioner, since the demand notice for repayment of the movements and in the cheque was admittedly issue before receiving the information from the bankers by the complainant that such cheques have been dishonoured; hence this Court has no hesitation in holding that the alleged demand notice for payment of the cheque amount dated 15.05.2019, cannot be termed as a valid and legal demands notice for the cheque which was returned on 05.07.2019. It is needless to mention, that the sine qua non for the magistrate or the cognizance of the offence is that there has to be valid demand notice issued by the complainant but 15 days after receipt of such notice the drawer of the cheque did not pay the cheque amount. Thus, on this score also the cognizance taken by the learned Magistrate is bad in law. It is also pertinent to mention here the cheques having been issued for the amount of more than 10 lakhs even though the cheques themselves show that the upper limit is rupees 10 lakhs; hence, such cheque cannot be termed as valid cheque. 11. Considering the aforesaid fact that the complaint was filed pre-maturely and without a valid notice of demand after the opposite party No.2 received information from the bank regarding return of the cheque as unpaid on 05.07.2019, hence, the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 which is now pending in the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat, being not sustainable in law, is quashed and set aside. 12. Accordingly the prayer to quash and set aside the entire criminal proceeding including the order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of 2019 which is now pending in the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat is allowed. 13. The opposite party No.2 may pursue any other remedy, if available in law, in accordance with law. 14. In the result, this Cr.M.P. stands allowed.