R.K. Bag, J. - (1.) The petitioner has challenged the order dated November 12, 2013 passed by learned Judicial Magistrate, 8th Court, Alipore in connection with A.C. 2082 of 2011, by which learned Magistrate rejected the prayer of discharge of the petitioner from the criminal proceeding under Section 138 of the Negotiable Instruments Act.
(2.) The backdrop of preferring the present revisional application is as follows : The petitioner took accommodation loan of Rs.50,000/- from the opposite party/complainant in the year 2004. The petitioner issued cheque no.407925 dated February 15, 2011 drawn on the State Bank of India, New Market Branch, Calcutta - 700 013 for Rs.50,000/- in favour of the opposite party/complainant in discharge of liabilities. The said cheque was dishonoured on presentation by the complainant/opposite party in D.P.S. Road Branch of Allahabad Bank on February 18, 2011. On April 23, 2011 the complainant/opposite party again presented the said cheque before Allahabad Bank, D.P.S. Road Branch, Tollygunge and the same was dishonoured for insufficient funds on April 25, 2011. On July 23, 2011 the complainant/opposite party issued the demand notice, which was received by the petitioner on July 26, 2011. It is alleged that the complaint was filed by the opposite party/complainant before the court of learned Magistrate on August 9, 2011, though the offence under Section 138 of the Negotiable Instruments Act would have been committed only on August 10, 2011 when the period of 15 days from the date of receiving the notice by the petitioner would have lapsed. The petitioner appeared before the court of learned Magistrate in response to the summons issued by the court and filed an application on September 26, 2013 praying for discharge on the ground that the complaint is not maintainable in law. By order dated November 12, 2013 learned Magistrate did not discharge the present petitioner from the criminal proceeding, though learned Magistrate held that the complaint filed by the opposite party/complainant is premature.
(3.) Relying on the decision of the Supreme Court in "Yogendra Pratap Singh v. Savitri Pandey " reported in (2015) 1 C. Cr. L.R (SC) 241 , learned counsel for the petitioner submits that the offence under Section 138 of the Negotiable Instruments Act is made out against the petitioner on August 10, 2011, i.e. after lapse of 15 days from the date of receiving notice by the petitioner on July 26, 2011. He further submits that the present complaint being premature cannot be allowed to continue, as continuation of such criminal proceeding will amount to an abuse of the process of the court.;