- (1.) Prayer in the present petition filed under Section 482 of the Code of Criminal Procedure is for quashing of complaint No. 139 dated 03.02.2009 (Annexure P-2) titled 'M/S. Sukhma Sons & Associates Vs. M/S. Third World Enterprises & Ors.' pending before the learned Judicial Magistrate Ist Class, Gurgaon, the summoning order dated 04.02.2009 (Annexure P-1) and the consequential proceedings arising therefrom.
(2.) Brief facts of the case are that the respondentcomplainant M/S. Sukhma Sons & Associates filed the complaint (Annexure P-2) for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 before learned Judicial Magistrate Ist Class, Gurgaon, against the petitioners-accused, inter-alia, on the grounds that the respondent-complainant had provided manpower to the petitioners-accused from time to time and in lieu thereof payment was released in favour of the respondent-complainant. In discharge of their liability, the petitioners-accused issued two cheques bearing Nos. 0697703 dated 25,11,2997 for Rs. 1,80,888/-; and 076532 dated 21.01.2008 for Rs. 1,25,865/- drawn on Indian Overseas Bank, Greater Kailash-Branch, Greater Kailash-II, Delhi, in favour of the respondent-complainant. The respondent-complainant presented the said cheques with the Union Bank of India, Gurgaon-Branch, Gurgaon on 10.11.2008 but the same were returned unpaid by the bankers of the petitioners-accused along with memo dated 10.11.2008 for the reasons "Stopped Payment By Drawer". Demand notice dated 09.01.2008 was sent by the respondent-complainant to the petitioners-accused through registered A.D. and under postal certificates calling upon the petitioners-accused to pay the amount of the aforesaid dishonored cheques within one month of the receipt of the said notice of demand. Notice was duly served but despite that the petitioners-accused did not pay the amount to the respondent-complainant, therefore, the complaint (Annexure P-2) was presented before the learned Judicial Magistrate Ist Class, Gurgaon, who passed the impugned summoning order dated 04.02.2009 (Annexure P-1) Learned counsel for the petitioners submitted that two cheques were issued on 25.11.2007 and 21.01.2008 respectively. The last date of the validity of the cheque dated 25.11.2007 was 24.05.2008 while for the cheque dated 21.01.2008, the last date of validity was 20.07.2008.
(3.) He further submitted that as per the averments in the complaint the above said cheques were presented with the drawer bank and dishonored on 10.11.2008, therefore, the cheques were presented after much delay of the expiry of the validity period of the cheques, i.e. six months. Learned counsel further argued that even if the cheques had bounced on 10.11.2008, then the last date for sending of the demand notice under Section 138 (b) of the Negotiable Instruments Act, 1881, was 09.12.2008. However, the receipts issued by by the post office reveals that the said notice of demand was sent on 10.12.2008 which was also beyond statutory time prescribed under the Act. The complaint (Annexure P-2) was presented before the learned court below on 22.01.2009. The said complaint was also barred by limitation. In view of the above, learned counsel for the petitioners submitted that without taking notice of the above facts, the learned Judicial Magistrate Ist Class, Gurgaon passed by the impugned order (Annexure P-1) as a matter of routine, therefore, the complaint (Annexure P-2); the summoning order dated 04.02.2009 (Annexure P-1) and the consequential proceedings arising therefrom were liable to be quashed.;