- (1.)The instant petition has been filed for invoking the inherent powers of this Court under Section 482 of Cr. P.C. praying therein to set aside the impugned order dated 14-11-2006 passed by Second Additional Sessions Judge (Fast track Court), Vidisha in Criminal Revision No. 130/2006 whereby the learned Judge has affirmed the order dated 19-7-2006 passed by JMFC Vidisha in Criminal Case No. 1412/06. Vide the aforementioned orders, both the Courts below did not allow the contention raised on behalf of the petitioner, that the complaint filed by the respondent for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred to as the Act) is pre-mature.
(2.)During the course of arguments Shri Bhagwan Pandey, the learned counsel for the petitioner has drawn attention on para 5 of the complaint dated 28-11-2005, the application dated 22-4-2006 filed by the Petitioner before the trial Court and the reply dated 16-6-2006 of this application submitted by the respondent and has submitted that in reply, this fact has been admitted by the respondent, that the second notice issued by him was served on petitioner on 21-11-2005 and thereafter he has filed the complaint on 29-11-2005. In view of this he submits that before expiry of period of 15 days as prescribed under Section 138 of the Act, the complaint has been filed. Hence, it is premature. He has further submitted that the judgment delivered by the Apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani 2000 (3) MPLJ 531 : (AIR 2000 SC 2946), which has been cited by the learned Judge in the impugned order, has different facts. In that case, the Court was specifically requested by the complainant to wait for taking cognizance, as a requisite time of 15 days was not expired.
(3.)Clause (c) of the proviso of Section 138 and Clause (b) of Section 142 of the Act are relevant and required to be perused. Which are as under :-
"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 provision 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) and (b) .................................... (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 Explanation :-........................... 142. Cognizance of offence :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) ......................... (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...........) (c) ..............."
(Emphasis supplied)