R S SOOD Vs. RAJENDER PRASAD

JUDGEMENT

(1.) AGGRIEVED by an order dated 14. 2. 2002 and order dated 7. 3. 2002 giving notice to the petitioner for offence under Section 138 of the Negotiable Instruments Act, instant revision petition has been filed for quashing the same. On appearance, in pursuance of summons, recall of the summoning order was sought on the ground that the complaint having not been filed in terms of Section 142 (b) within one month of the date when the petitioner is reported to have refused to receive the notice, no cognizance of the offence punishable under Section 138 of the negotiable Instruments Act could have been taken by the learned trial court and no notice could have been given to the petitioner.

(2.) IN the present case, the cheque was issued on 27th of november, 1996 but the same was returned with the remarks, 'insufficient funds' on 2nd of December, 1996. A notice dated 24. 12. 1996 was sent by the respondent to the petitioner but the same was received back with the report of refusal. The petitioner reportedly refused the notice on 30th december, 1996. There is no indication on record as to when the envelop containing notice to the petitioner with report of refusal had been received back by the- respondent. Anyway, if the report of the refusal is to be treated as service of notice on the petitioner on 30th of December, 1996, he was required to make payment of the cheque amount within 15 days of such service and the respondent could have filed his complaint under Section 138 of the Negotiable Instruments Act within one month after the expiry of 15 days time. 15 days time after service of notice on the petitioner on 30th of December, 1996 came to an end on 14th of January, 1997 and thus, the complaint against the petitioner could have been filed by 13th of February, 1997. In the present case, however, the complaint was filed on 6th of March, 1997 only, much beyond the period of one month as contemplated under Section 142 (b)of the Negotiable Instruments Act.

(3.) IN the circumstances, since the complaint was filed beyond limitation, no cognizance of the offence punishable under section 138 of the act could have been taken, on the basis thereof, by the learned Metropolitan magistrate in view of bar contained in Section 142 of the Act. The learned trial court, thus, fell in error while rejecting the petitioner's plea for dismissal of complaint on the ground of limitation. As the cognizance of offence punishable under Section 138 itself is bad, no further proceedings could have taken place and, consequently, giving notice under section 251 Cr. P. C. to the petitioner is also rendered bad in law.