K.C.SHARMA, J. - (1.) Heard learned Counsel for the petitioners and the learned Counsel for the non-petitioners and perused the order impugned in this petition under Section 482, Cr.P.C.
(2.) The complainant petitioner (hereinafter to be called as "the petitioner") filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short to be referred to as "the Act") on 1.8.1998 in the Court of Judicial Magistrate (Jr. Dn.) No. 3, Alwar. It was alleged in the complaint that respondents purchased sugar on credit from the petitioner on 15.6.1998, 13.6.1998 and 15.6.1998 for Rs. 55,544.68, 27,848.88 and 27,006.06 respectively, against which the respondent No. 2 issued 4 post-dated cheques for 3.7.1998 and 5.7.1998 drawn on Central Bank of India, Alwar Branch, with the assurance that payment in full and final shall he made on presentation of cheques. The petitioner presented the cheques for encashment, but the same stood dishonoured and the Bank returned the cheques on 6.7.1998 and 7.7.1998 with the remarks of 'insufficiency of funds in the bank accounts of the respondents'. Accordingly, the petitioner gave notices to respondent Nos. 2 and 3 on 17.7.1998 which were received by them on 18.7.1998. Despite notice, the respondents did not make payment of the above cheques within the stipulated period. Ultimately, the petitioner submitted a criminal complaint under Section 138 of the Act. The learned Magistrate after recording statement of Ashok Kumar under Section 200, Cr. P. C. took cognizance of the offence on 2.9.1998. The respondent Nos. 2 and 3 filed an application dated 13.10.1999 in the Court below with the prayer that since the complaint was filed even before the stipulated period of 15 days from the date of service of notice, therefore, the complaint should be dismissed as premature. The learned Magistrate vide impugned order, dismissed the petitioner's complaint only on the ground that no cause of action accrued to the petitioner on the date of filing of the complaint because by that time, the stipulated notice period of 15 days had not completed. Ms. Preeti Sharma, learned Counsel for the petitioner vehemently argued that even if the complaint was premature, the learned Magistrate, once taken cognizance of the offence ought not to have dismissed the complaint. According to her, even if a complaint is filed prior to the notice period comes to an end, the learned Magistrate should have kept the complaint pending till the stipulated notice period of 15 days is completed. She argued that even if a complaint is filed without disclosing the cause of action in terms of the provisions of Section 138 of the Act, the Court may take cognizance after the cause of action arises to the complainant. In support of her above arguments, learned Counsel has placed reliance on Bhanwar Lal v. State of Rajasthan, 1999 Crl.L.J. 949, and Narsingh Das Tapadia v. Goverdhan Das Partani, III (2000) CCR 160 (SC)=VI (2000) SLT 523=(2000) 7 SCC 183.
(3.) On the other hand learned Counsel for respondent No. 2 has supported the impugned order passed by the learned Court below and has argued that the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. He submitted that in the present case notice was served on the non- petitioners on 18.7.1998 and period of 15 days expired on 2.8.1998, and therefore, the cause of action to file complaint arose only on 3.8.1998. Therefore, the complaint filed before the learned Magistrate was premature and the same has been dismissed rightly. In the circumstances, the High Court should not exercise its inherent powers. He has placed reliance on M/s. Saketh India Ltd. v. M/s. India Securities Ltd., 11(1999) CCR 1(SC) -11 (1999) SI.T 465=AIR 1999 SC 1090.;