Mukta Gupta, J.@mdashBy this petition the Petitioner seeks quashing of the order dated 23rd June, 2011 passed by the Learned Metropolitan Magistrate summoning the Petitioner for offence u/s 138 of the Negotiable Instruments Act (in short NI Act) in complaint case No. 4434/2011 titled as "M/S Aramex India Pvt. Ltd. Vs. Intarvo Technologies Ltd. & Ors". The facts giving rise to the filing of the present petition in nutshell are that the Respondent company entered into an agreement with Petitioner No. 1 on 6th October, 2009 for providing courier services. It was agreed between the parties that the payments will be made within 30 days on the submission of the bills. The authorized signatory of the Petitioner No. 1 company issued a cheque bearing No. 020161 dated 20th March, 2011 for a sum of Rs. 19,91,770/- drawn on ICICI Bank Ltd., Okhla Phase-I, New Delhi branch on behalf of the Petitioner company in favour of the Respondent company against the invoice raised by the Respondent company. The said cheque was dishonoured on 23rd March, 2011 and the Respondent! complainant issued a notice in terms of the requirement of Section 138 Negotiable Instruments Act on 20th April, 2011 which was received by the Petitioner No. 1 on 25th April, 2011. On receipt of the legal notice within the statutory period of 15 days the Petitioner No. 1 issued two cheques bearing No. 029342 and 029344 for Rs. 10,00,000!- and 9,91,770!- respectively on 5th May, 2011 towards the satisfaction of the dishonoured cheque No. 020161. For the sake of confirmation of the two new cheques issued, an e-mail was sent by the Petitioner No. 1 on 6th May, 2011 to the complainant stating that with reference to their letter received on 25th April the Petitioner had issued two new cheques amounting to Rs. 19,91,770!-. Again on 7th May, 2011 the Petitioner No. 1 sent an e-mail to the Respondent stating that they had made the payments against dishonoured cheque on 5th May and requested to withdraw the legal notice. In response to the above said e-mails the Respondent sent an e-mail on 10th May, 2011 acknowledging the payments against the dishonoured cheque i.e. cheque No. 020161 dated 20th March, 1991, however stated that the cheques issued by the Petitioner had been adjusted towards outstanding dues payable to the Respondent and demanding the balance payment. After the said e-mail the Respondent filed the abovementioned complaint on 9th June, 2011 u/s 138 of the Negotiable Instruments Act.
2. When the present petition came up for hearing this Court after hearing the learned counsel for the Petitioner while staying the proceedings before the learned Trial Court issued notice to the Respondent. Learned counsel for the Respondent entered appearance on 22nd March, 2012 and sought time to file reply. Four weeks time for filing the reply was granted and the matter was fixed for today. Neither the reply has been filed nor is the learned counsel present on behalf of the Respondent despite pass-over. Thus, the facts as stated by the Petitioner are deemed to be admitted.
3. Section 138 of the Negotiable Instruments Act provides as under:
138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
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 provisions 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 cheques 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."
4. The cause of action for an offence u/s 138 Negotiable Instruments Act arises only when on a dishonour of cheque and after receipt of a notice the accused 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 15 days of the receipt of the said notice. In the present case the Petitioners made payment of the said amount within 15 days of the receipt of the notice and hence no cause of action arises u/s 138 Negotiable Instruments Act. The Respondent by adjusting the said amount to the outstanding dues cannot fasten the criminal liability on the Petitioners for offence u/s 138 Negotiable Instruments Act. In view of the facts of the case the impugned order dated 23rd June, 2011 passed by the learned Metropolitan Magistrate summoning the Petitioner in complaint case No. 4434/2011 titled as "M/S Aramex India Pvt. Ltd. Vs. Intarvo Technologies Ltd. & Ors" u/s 138 Negotiable Instruments Act is set aside. Petition and application are accordingly disposed of.
