HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1341 of 2004 ORDER: This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure is filed by the petitioner-de facto complainant against judgment, dated 29.08.2002, rendered in C.C.No.236 of 1999 by the II Additional Judicial Magistrate of First Class, Tirupathi. Heard the learned counsel for the petitioner-complainant and the learned Additional Public Prosecutor appearing for the respondent- State. The case of the prosecution in brief is that on 24.02.1999 the accused in the case borrowed a sum of Rs.1,50,000/- from the complainant V.Arundhathi (LW.1) and issued a cheque bearing No.246379 dt.24.02.1999 for the amount, drawn on State Bank of Hyderabad, Tirupathi and requested to present the said cheque on 07.04.1999. The complainant presented the cheque for clearance on 07.04.1999, but the same was returned by her banker with an endorsement “insufficient funds” in the account of the accused. Then on 19.04.1999 the complainant issued a legal notice informing about the bouncing of the cheque. Even after the receipt of notice also, the accused paid deaf ear and had not paid any amount. Hence, the complainant filed a complaint before the trial court, which was referred to the Central Crime Station police, Hyderabad under Section 156(3) Cr.P.C., on the basis of which the case was registered in Crime No.204/99 on its file against the accused for the offence punishable under Sections 420 IPC and 138 of the Negotiable Instruments Act. Hence the charge. The prosecution in order to substantiate its case, examined P.Ws.1 to 4 and marked Exs.P1 and P9. On behalf of the accused, none were examined and no documents were marked. The trial Court on the appreciation of the evidence on record, dismissed the calendar case holding that even though the notice was issued, without waiting for the statutory period of fifteen days, the complaint was presented before the Court and hence it was prematured by reason of which this revision has been preferred. Further in Crl.R.C.No.1340 of 2004, under similar circumstances this Court observed: “Since, the learned Magistrate has taken cognizance of the offence on the final report submitted by the police, the very taking of the cognizance of the case for the offence under Section 138 of the N.I. Act is not in accordance with Section 142 of the N.I. Act. The trial Court considered this aspect in right perspective and proceeded to acquit the accused for the offence under Section 138 read with Section 142 of the N.I. Act. I do not see any valid grounds to interfere with the judgment of acquittal.” Section 138 of the Negotiable Instruments Act clearly provides - -- 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 provisions 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) 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 from 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. For taking cognizance of the case under Section 138 of the N.I. Act, the payee has to file a complaint in writing and thereupon the concerned Magistrate has to take cognizance of the case. Section 142 prescribes the procedure for taking cognizance of the offence under Section 138 of the N.I. Act, which reads as hereunder: 142. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (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. (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. Here Section 138(c) read with Sec.142(2) of the NI Act is very important. By reason of the 1st provision the complainant should have waited for 15 days after the receipt of the notice sent by him to the accused whereas by reason of the 2nd provision the complaint should have been filed within one month of the date on which the cause of action arise. The date of receipt of the notice by the accused would be the date of arise of the cause of action in the case. The provisions are mandatory. Therefore, when the complaint was filed before the expiry of the 15 days period from the date of receipt of the notice by the accused it is clear that the complaint was filed prematuredly and consequently the complaint is not maintainable. The trial Court properly examined the matter and consequently dismissed the complaint and there is no need to interfere with the same. Accordingly, the Criminal Revision Case is dismissed. ___________________________ G.KRISHNA MOHAN REDDY, J 30th June, 2011. Rns