- (1.) THIS revision petition under Sec. 397/401 Crpc is directed against the order dated 11. 8. 2003 passed by the Additional district and Special Judge, SC/st (Prevention of Atrocities) Cases, Pratapgarh (for short, "the Revisional Court" hereinafter) in Criminal Revision petition No. 9 of 2002, by which the learned Revisional Court set-aside the order dated 10. 5. 2001 passed by the Judicial Magistrate, Chhoti Sadri, district Chittorgarh (for short, "the Trial Court" hereafter), whereby the Trial court, recalled its order dated 9. 11. 1999 whereby Trial Court took cognizance of the offence and issued process against the petitioner and dismissing the complaint filed by the complainant on the ground of its being premature and acquitted the accused-petitioner of the offence under Sec. 138 of the Negotiable Instrument Act, 1881 (for short, "the Act" ).
(2.) ON 9. 1. 1999, respondent-complainant Mahesh Kumar filed a complaint under Sec. 138 of the Act before the Trial Court stating therein that on 14. 12. 1998, accused-petitioner Arvind Kumar gave him a cheque, which, on being presented in the bank, was dishonoured. On this, the complainant sent a notice dated 28. 12. 1998 which was received by the accused-petitioner on 29. 12. 1998. On 9. 1. 1999, the respondent-complainant filed complaint on the very day, i. e. on 9. 1. 1999, the Trial Court took cognizance of the offence under Sec. 138 of the Act against the accused-petitioner. However, subsequently, vide order dated 10. 5. 2001, the Trial Court recalled the order 9. 1. 1999 taking cognizance against the accused-petitioner, dismissed the complaint being pre-mature and acquitted the accused of the aforesaid offence. Aggrieved with the order dated 10. 5. 2001, the complainant-respondent preferred a revision petition before the Revisional court which has been allowed vide impugned order dated 11. 8. 2003 with a direction to the Trial Court to proceed with the matter treating the order dated 9. 1. 1999 as valid. Hence this revision by the accused-petitioner. 2a. I have heard learned counsel for the parties and perused the orders passed by the Courts below. Sec. 138 of the Act reads 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 extend to one year, 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 fifteen days of the receipt of information by him for 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. "
(3.) THE cause of action under the proviso (b) and (c) of Sec. 138 of the act for filing complaint cannot be said to arise merely on the cheque being dishonoured but will arise only after giving of notice of demand of the amount of the cheque by payee or holder in due course of the cheque to the drawer of the cheque and coupled with the failure of the drawer of the cheque to pay that amount within 15 days of the date of service/receipt of notice on or by him. In G. Ravi Kumar vs. Ravindranath, (1998) 1 Crimes 86 (A. P.), the Andhra Pradesh High Court held as under :- "the cause of action for initiating proceedings under Sec. 138 of the negotiable Instrument Act would arise only after expiry of 15 days of receipt of notice by drawer and not from the date of return of said notice without being served on drawer of cheque. ";