Harsh Kumar, J. - (1.) Heard learned counsel for the applicant, learned AGA for the State and perused the record.
(2.) Learned counsel for the complainant-appellant submits that the complainant-appellant had filed complaint case no.801 of 2006, under section 138 N.I. Act, in which vide judgment and order dated 7.11.2006, the Judicial Magistrate, Etawah holding the accused-respondent guilty convicted him and sentenced accordingly; that feeling aggrieved the accused-respondent filed Criminal appeal No.14 of 2006 before the Sessions Judge, Etawah and vide impugned judgment and order dated 2.7.2007, the Additional Sessions Judge, Court No.3, Etawah setting aside the order of Magistrate dated 7.11.2006 has acquitted the respondent on technical ground of the complaint having been filed premature; that the relevant dates required for the purpose of this case are 29.5.2000, 10.6.2000, 19.6.2000, 21.6.2000 and 6.7.2000; that (i) the respondent no.2 issued a cheque for Rs.1 lac to the appellant on 29.5.2000, which was deposited in bank within the requisite time, (ii) the bank conveyed the information, regarding dishonour of cheque on 10.6.2000, (iii) the complainant-appellant sent a notice of demand to accused-respondent by registered post on 19.6.2000, (iv) which was duly served on the accused-respondent by his refusal on 21.6.2000; that thereafter the appellant has filed present complaint on 6.7.2000, which may not be considered to be premature; that as per provisions of section 142 N.I. Act, the complaint is required to be filed within one month from the date when cause of action arose under section 138 (C) N.I. Act; that the appellate court has acted wrongly in holding the complaint to be premature because of having been filed on 15th day as against the requirement of enactment for filing it after 15 days.
(3.) Before proceedings further it would be just to reproduce the provisions of Sections 138 and 142 of Negotiable Instruments Act, 1881:- Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account.- 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 be extended 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 cheque 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. Section 142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (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: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period] (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.] Upon hearing learned counsel and perusal of record as well as provisions of Sections 138 and 142 of the Act mentioned above, it is clear that (a) cheque has to be presented to bank within six months from the date of issuance of cheque, (b) in case of dishonour of cheque, the demand has to be made from drawer within one month from the date when information of dishonour of cheque received from bank and (c) drawer must be given opportunity of 15 days for making the payment of the amount of Cheque. From the above provisions it is also clear that the complaint has to be filed after the period of 15 days from the date of service of notice. Section 142 provides a maximum period of one month from the date when cause of action arises i.e. within 30 days after the expiry of above period of 15 days and not thereafter. ;