THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3864 of 2007 Dated:08th July, 2010 Between: Smt.R.Parimala ….Petitioner/Accused and 1. The State of A.P., rep. by its Public Prosecutor, High Court of A.P. & Anr. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3864 of 2007 ORDER: This Criminal Petition has been filed by Smt.R.Parimala under Section 482 Cr.P.C. with a prayer to quash the proceedings in C.C.No.1266 of 2006 on the file of I Additional Chief Metropolitan Magistrate at Hyderabad. 2. Notice before admission came to be ordered on 29.06.2007. Despite notice being served on the 2nd respondent, he did not choose to enter appearance either in person or through a counsel. 3. Heard learned counsel appearing for the petitioner/accused and perused the material available on record. 4. Facts of the case, in brief, are: K.Mahender Rao-2nd respondent presented a complaint before XV Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad, alleging, inter alia, that Smt.R.Parimala, the petitioner herein, borrowed an amount of Rs.70,000/- as hand loan in the first week of January, 2001 and executed a promissory note promising to repay the same. One L.V.Hari Prasad stood as a surety for the payment of the amount borrowed by her. She issued a cheque bearing No.308491, dated 30.06.2001, drawn on ICICI Bank Ltd., Khairatabad Branch, for a sum of Rs.70,000/- towards discharge of her liability. On presentation of the cheque on 27.12.2001, the same came to be returned on 28.12.2001 with an endorsement ‘insufficient funds’. The complainant got issued a legal notice on 06.02.2002 calling upon the accused to make good the payment of the cheque marking a copy of the same to L.V.Hari Prasad, who stood as surety for such payment. According to the complainant, the notice was duly served on the petitioner on 12.01.2002. Having waited for the statutory period, a complaint came to be presented under Sections 190 r/w. 200 Cr.P.C., for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I.Act’) against the petitioner/accused. The learned Magistrate took the complaint on file as C.C.No.735 of 2003. Hence, this Criminal Petition by the petitioner/accused to quash the proceedings in C.C.No.1266 of 2006 (old C.C.No.735 of 2003). 5. The only point urged by the learned counsel appearing for the petitioner/accused is that by the time the complaint was resubmitted, it was beyond 30 days of accrual of the cause of action and therefore, the learned Magistrate ought not to have taken cognizance of the complaint for the offence under Section 138 of the N.I.Act. The learned counsel took me to the Photostat copy of the complaint with endorsement thereon. 6. The complaint filed by the 2nd respondent-complainant came to be returned on 25.02.2002. The complainant resubmitted the complaint on 27.12.2002. He did not file any application to condone the delay in resubmitting the complaint. Therefore, it is to be construed that the complainant presented a fresh complaint on 27.12.2002. Under Section 142 of the N.I.Act, the payee has to file a complaint within one month from the date on which the cause of action arises under Section [c] of the proviso to Section 138 of the N.I.Act. As per the averments made in para.3 of the complaint, the statutory notice under Section 138(b) of the N.I.Act came to be served on the petitioner/accused on 12.01.2002. Therefore, the cause of action for filing the complaint against the petitioner/accused accrues after expiry of 15 days from the date of service of notice. For better appreciation, I may refer para.3 of the complaint, which reads as hereunder: “The complainant submits that the accused is deliberately avoiding and evading the payment due and payable by her and is harassing the complainant from realizing the amounts due and payable by the accused. The complainant submits that he got issued legal notice to the accused dt.06.01.2002 calling upon the accused to make the payment due and payable by her, marking a copy of the same to Sri L.V.Hari Prasad, who stood as Suety for such payment, by Registered Post Ack. Due and also Under Certificate of Posting. The complainant submits that the notices were duly served on the accused on 12.01.2002. The complainant submits the accused failed to give any reply despite the receipt of said legal notices and also failed to make the payment, thus committed a offence under the provisions of the N.I.Act.” Under Section 142 of the N.I.Act, complaint by the payee is required to be presented before the Court within one month from the date of cause of action arises. Indisputably, the complainant resubmitted the complaint on 27.12.2002 and it is beyond one month from the date of accrual of the cause of action. The learned Magistrate ought not to have taken cognizance of the case for the offence under Section 138 of the N.I.Act, since the complaint is not filed within the period of limitation provided under Section 142(b) of the N.I.Act. Hence, the Criminal Petition deserves to be allowed. 7. Accordingly, the Criminal Petition is allowed and the proceedings in C.C.No.1266 of 2006 on the file of I Additional Chief Metropolitan Magistrate at Hyderabad, are hereby quashed. ______________________ B.SESHASAYANA REDDY, J. Date:08th July, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3864 of 2007 Dated:08th July, 2010