DINESH MAHESHWARI, J. - (1.) The present one is the third petition in this Court under Section 482 of the Code of Criminal Procedure [ CrPC?] by the petitioner, who is sought to be proceeded against for the offence under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred to as "the NI Act"] in the Court of Chief Judicial Magistrate, West Garo Hills, Tura in C.R. Case No.266 of 2015. Shorn of unnecessary details, relevant aspects of the matter are as follows: The complainant/respondent has filed the complaint case aforesaid under Sections 138/142 of the NI Act while alleging dishonour of two cheques issued by the present petitioner, the particulars whereof are as under : "(i) Cheque No.892545, dated 26.05.2015 for an amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) drawn on State Bank of India, Guwahati Branch, Assam. (ii) Cheque No.125335, dated 02.06.2015, for an amount of Rs.16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand only) drawn on The Naini Tal Bank Ltd, Gaziabad Branch." The complainant/respondent submitted in his complaint that the aforesaid cheque bearing number 892545 dated 26.05.2015, when presented for collection, was returned unpaid by the petitioner's Banker with the remarks "insufficient funds" under the Cheque Returning Memo dated 28.05.2015. The respondent further submitted that the other cheque bearing number 125335 dated 02.06.2015 for an amount of Rs.16,50,000/- was also returned unpaid by the petitioner?s Banker with the remarks "opening balance insufficient". The respondent did not state in his complaint the date of Returning Memo concerning this cheque number 125335 but the learned counsel for the petitioner has shown the relevant part of the document during the course of hearing; and it remains rather indisputable that the said Cheque Returning Memo was issued by the petitioner's Banker on 10.06.2015. This particular date of Returning Memo of cheque number 125335 carries relevance in this matter, as shall be noticed a little later. The respondent asserted in his complaint that he verbally informed the petitioner about fate of the cheque but upon the petitioner paying no heed to the request, he was compelled to serve a notice through the lawyer on 11.06.2015, calling upon the petitioner to make payment of the dishonoured 'cheque' within a period of 15 days from the date of receipt of the notice. The assertions of the respondent, as occurring in paragraph 10 of the complaint, for their relevance, are reproduced as under:- "That consequent upon the dishonour of the said cheque the Complainant verbally informed the Opposite Party about the fate of the said cheque and requested him to make the payment forthwith but the complainant did not pay any heed to the complainant's requests as a result of which the Complainant was compelled to serve the Notice upon the Opposite Party through his Counsel on 11.06.2015 calling upon him to make the payment of the dishonoured cheque within a period of 15 days from the date of receipt of the said notice." It could be noticed that in the aforesaid assertions, the complainant specifically referred to 'the dishonoured cheque' in singular at three places and not in plural. The respondent further referred to the reply received by him of the notice so served and while maintaining that the allegations of the petitioner in the reply were false and baseless, proceeded to assert that the petitioner had issued the aforesaid cheques dishonestly, while knowing well that there was not enough money in his bank account to honour the cheque. Though in paragraph 13 of the petition, the complainant/respondent at some places mentioned about 'cheque(s)' but in paragraph 17, again, asserted about 'cheque' in singular. At this juncture, the contents of the notice served on behalf of the complainant/respondent demanding payment need to be taken note of. This notice demanding payment was issued on behalf of the complainant respondent by his lawyer on 11.06.2015. Therein, at the very opening, demand was made for an amount of Rs. 31,50,000/- but while stating dishonour of cheque bearing number 892545 for an amount of Rs. 15,00,000/- in the following :- ".......At the instance of my Client SHRI Vivek Agarwal, I serve this Legal Notice upon you for immediate payment of Rs. 31,50,000/- (Rupees Thirty One Lakhs and Fifty Thousand only) for dishonour of Cheque bearing Cheque No. 892545 drawn on State Bank of India, Guwahati Branch, for an amount of Rs. 15,00,000/- due to insufficient funds in your account as follows: ........" Thereafter, it was alleged in the notice that the petitioner had taken financial assistance from the respondent of an amount of Rs. 31,50,000/- in the month of December, 2014 with the assurance of repayment by 31.3.2015. It was further alleged that for the purpose of repayment of the said assistance amount, the petitioner had issued the said two cheques viz, the cheque bearing number 892545 dated 26.05.2015 for an amount of Rs. 15,00,000/- drawn on State Bank of India, Guwahati Branch; and the other one bearing number 125335 dated 2.6.2015 for an amount of Rs. 16,50,000/- drawn on Nainital Bank Ltd., Ghaziabad Branch. In the said notice, thereafter, the facts were stated about dishonour of the cheque bearing number 892545 for insufficient funds but then, it was stated that there was 'strong apprehension' in the mind of the complainant/respondent that the other cheque bearing number 125335 would also meet the same fate. The contents of paragraph 6 of this notice dated 11.6.2015 are as under:- "That my Client presented the aforementioned Cheque bearing No. 892545, dated 26.5.15, drawn on State Bank of India, Guwahati Branch, for an amount of Rs. 15, 00,000/- (Rupees Fifteen Lakhs only), for encashment to his Banker Union Bank of India, Tura Branch, but the same was dishonoured by your Banker, State Bank of India, Guwahati with the remarks "Insufficient Funds" vide Bank's Returning Memo dated 28.05.2015 (SBI, Tura Branch). Now there is a strong apprehension in the mind of my Client that the Cheque bearing No. 125335, dated 02.06.2015, drawn on The Nainital Bank Ltd, Ghaziabad Branch, issued by you to my client will also meet the same fate." As per the contents above-quoted, there remains hardly any doubt about the fact that as on the date of issuance of notice, only the cheque bearing number 892545 for an amount of Rs.15,00,000/- had returned unpaid. As regards the other cheque bearing number 125335, it had not been the assertion that the same had returned unpaid but, only a so-called 'strong apprehension' was stated in the notice. In this notice dated 11.06.2015, while accusing the petitioner of dishonest intents, the demand was made on behalf of complainant/respondent of an amount of Rs. 15,00,000/-, being the amount of dishonoured cheque bearing number 892545 as also another amount of Rs. 16,50,000/-, being the amount of other cheque bearing number 125335 apart from the charges for sending the notice in the following manner:- "Under the circumstances, I am instructed by my Client to call upon you by this statutory notice under Sec. 138 of The Negotiable Instruments Act to make the payment of dishonoured Cheque amounting to Rs. 15,00,000/- (Rupees Fifteen Lakhs only) together with an amount of Rs. 16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand only) for the second cheque drawn on The Nainital Bank, within a period of 15 (fifteen) days from the date of receipt of this notice together with compensatory interest at the market rate, failing which I have further instructions from my Client to initiate appropriate criminal action against you under the provisions of The Negotiable Instruments Act, 1881, as amended up to date, and in that event you will be held liable for all costs and consequence arising therefrom. You are liable to pay a sum of Rs. 5,000/- (towards the charges for sending the present notice. A copy of this Notice is retained by me for future reference and course of action."
(2.) The material placed on record shows that upon presentation of the said complaint, learned Chief Judicial Magistrate, Tura proceeded to take cognizance of the offence under Section 138 NI Act and issued summons to the present petitioner by the order dated 15.07.2015.
(3.) Having been summoned in relation to the complaint case aforesaid, the petitioner approached this Court by way of a petition under Section 482 CrPC, being Criminal Petition No.30 of 2015, that was considered and disposed of on 03.03.2016. A learned Single Judge of this Court, though took note of the contention of the petitioner that notice served on him was not in accord with the provisions of Section 138 of the NI Act, but took the view that the matter could better be decided by the Trial Court and hence, the petitioner was directed to approach the Trial Court on the point highlighted by him. This order dated 03.03.2016, as passed in Criminal Petition No. 30 of 2015, reads as under: "Heard learned counsel for the petitioner, Mr. A.Deb who submits that the instant petition has been filed praying to quash the proceeding pertaining to the Complaint Case (C.R.) No. 266/2015 pending before the Chief Judicial Magistrate, West Garo Hills, Tura. ;