- (1.) R. K. Rastogi, J. This application under section 482 Cr. P. C. has been filed for quashing the order dated 21. 10. 2002 passed by Sri Arvind Kumar, Judicial Magistrate, Sadabad District Hathras in Criminal Application No. 117 of 2002 under sections 420, 406 I. P. C. and 138 Negotiable Instruments Act.
(2.) THE facts relevant for disposal of this application are that the complainant opposite party No. 2 moved an application under section 156 (3) Cr. P. C. against the accused-applicant Smt. Shobha Kulshrestha and one Smt. Shakuntala Devi with these allegations that the complainant is owner of a brick-kiln and both the accused persons purchased bricks from him and gave a Cheque of Rs. 1,35,000/- to him on 20. 12. 2000. This cheque was sent to the Bank for payment but the Bank refused to make payment on account of insufficient funds. On the basis of this information the complainant gave a notice to the accused persons on 4. 10. 2001. But neither the accused made payment nor gave any reply in spite of service of above notice. THEn the complainant gave another notice on 12. 11. 2001 but of no avail. Thus the accused had committed an offence under section 138 of Negotiable Instruments Act and section 420 I. P. C. THE complainant gave an application in writing to the police station on 28. 1. 2002 but no action was taken. THEn he moved this application under section 156 (3) Cr. P. C. On the above application the learned Magistrate passed an order for treating it as complaint and after taking statements of the complainant and his witnesses under sections 200 and 202 Cr. P. C. he was of the view that prima facie a case under sections 420 and 406 I. P. C. and section 138 of Negotiable Instruments Act was made out against the accused persons and he therefore summoned them vide his order dated 21. 10. 2002. Aggrieved by that order the accused filed this application under section 482 Cr. P. C. Counter and rejoinder affidavits have been filed in this case. I have perused them and have also heard both the parties.
(3.) IT was submitted by the learned Counsel for the applicants that the procedure for taking cognizance for the offence under section 138 of Negotiable Instruments Act has been provided in section 142 of the above Act which runs as under: " 142. Cognizance of offences.-Notwithstanding any thing contained in the Code of Criminal Procedure, 1973- (a) no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. " He submitted that in the present case no complaint was filed by the complainant before the Magistrate but an application was filed under section 156 (3) Cr. P. C. and so the Court could not take cognizance of the matter. It was further argued that under sub-clause (b) of the above section 142 of the Act the complaint must be made within one month of the date on which cause of action arose under clause (c) of proviso to section 138 of the Act. It is to be seen that under the aforesaid clause (c) the drawer of the cheque has got an opportunity to make payment of the cheque amount within 'a period of 15 days from the date of service of the notice and so the cause of action arises on expiry of the above period of 15 days from the date of service of the notice' and the complaint under section 138 of the Act is to be filed within one month from the above date.;