JUDGMENT M.K. Mittal, J.
1. Heard Sri Swapnil Kumar, learned counsel for the applicants, learned A.G.A. and perused the record.
2. Brief facts of the case are that the complainant is carrying whole sale business of supply of Plastic Granules and the accused had the business of manufacturing of Plastic Pipes and sheets. They purchased Plastic Granules for Rs. 4,1 0,475 and gave a cheque No. NCCH 2119882 dated 29.7.1997 for this amount on behalf of the firm. The accused had given the assurance that the Cheque would be encased whenever it was presented but it was returned with bank memo dated 31.7.1997 with the endorsement "funds insufficient". Thereafter the complainant met the accused and informed about the dishonor of the cheque. The accused asked him to represent the cheque and also assured that it would be encased after the second week of October 1997. The Complainant again deposited the Cheque in October 1997 but the same was returned on 23.10.1997 with the remark "not arranged for". The cheque was presented third time and it was again returned on 17.11.1997. Thereafter the complainant gave a legal notice dated 22.11.1997 to the accused asking him to make the payment within 15 days from the receipt of the notice. Notice was sent under registered post as well as under certificate of posting but the accused neither gave any reply nor paid the amount inspire of due service. Thereafter the complaint was filed on 8.12.1997. Learned Magistrate vide order dated 20.3.1998 directed to summon the accused persons.
3. Learned counsel for the accused applicants has contended that the complaint is barred by time as the cheque was dishonored on 31.7.1997 for the first time and the complainant had informed the accused about the dishonor orally. But this contention of the learned counsel for the applicants is not tenable and cannot be accepted.
4. In the case of Prem Chand Vijay Kumar v. Yashpal Singh and Anr. , the Hon'ble Apex Court has held as under:-
Clause (a) of the proviso to Section 138 of N. I. Act does not put any embargo upon the payee to successively present a dishonored cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being presented due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encased. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation of the cheque and its dishonor, a fresh right-and not a cause of action-accrues in his favour. He may, therefore, without taking pre-emptor action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque.
But once he gives a notice under Clause (b) of Section 138, he forfeits such right as in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise.
In para 13 of the judgment, it has been held that one of the indispensable factors to form the cause of action envisaged in Section 138 of the Negotiable Instruments Act is contained in Clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque "within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid". If no such notice is given within the said period of 15 days, no cause of action could have been created at all.
5. In the instant case, the complainant presented the cheque three times in the Bank and it was dishonored every time. However written notice was given on 22.11.1997 after the dishonor of the cheque on 17.11.1997. Provision of Section 138(b) of N. I. Act clearly shows that the notice has to be given in writing. Therefore the contention of the learned counsel for the accused applicants that the complainant had orally informed the accused after the first dishonor of the cheque and therefore the complaint is barred by time is not tenable and is misconceived.
6. In the circumstances, I come to the conclusion that there is no legal defect in the complaint and the summoning order, and the application under Section 482 Cr.P.C. is devoid of merits and is misconceived and is liable to be dismissed.
7. Application under Section 482 Cr.P.C. is hereby dismissed.
8. Learned Chief Judicial Magistrate, Agra is directed to expedite the hearing and to conclude the trial of Criminal Case No. 1003 of 1997 (new No. 243 of 1998) under Section 138 N. I. Act within a period of three months.
9. Copy of the order be sent to learned Trial Court within a week.