JAYATUBHAI ABHALBHAI MAIDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant herein - original accused to quash and set aside the impugned complaint being Criminal Case No.1249/2008 pending in the Court of learned Judicial Magistrate, First Class, Talaja, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").

(2.) THAT respondent No.2 herein - original complainant has lodged the impugned complaint being Criminal Case No.1249/2008 in the Court of learned JMFC, Talaja against the applicant herein - original accused for the offence under Section 138 of the NI Act, for dishonor of the cheque dated 09.07.2008, which was returned with endorsement "referred to drawer". It is to be noted that the aforesaid cheque dated 09.07.2008 was returned with an endorsement "referred to drawer" on 12.07.2008 and the complainant served the notice upon the accused on 28.07.2008 informing the applicant with respect of the dishonor of the said cheque and calling upon the applicant to make payment of the cheque amount. That thereafter again the complainant deposited the said cheque and again the same came to be dishonored on 17.10.2008. That thereafter the complainant served another notice dated 14.11.2008 upon the applicant - accused calling upon the applicant - accused to make the payment of the cheque amount and thereafter the impugned complaint/criminal case has been filed by the complainant against the applicant - accused for the offence under Section 138 of the NI Act. That in the said complaint, learned Magistrate has directed to issue summons against the applicant for the offence under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the same, the applicant - accused has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.

(3.) SHRI V.M. Pancholi, learned advocate appearing on behalf of the applicant - original accused has vehemently submitted that as such the impugned complaint filed by the complainant is barred by limitation. It is submitted that the cheque in question was deposited by the complainant which came to be dishonored by the Bank on 09.07.2008 with an endorsement "referred to drawer" and as such the complainant served a notice upon the accused on 28.07.2008 informing the applicant - accused with respect to dishonor of the aforesaid cheque and calling upon the applicant to make payment. However, instead of instituting the complaint on the said notice, the complainant again deposited the cheque which came to be dishonored on 17.10.2008 and again the applicant was served with the notice on date 14.11.2008. It is submitted that therefore, the cause of action to file the complaint on non -payment of the cheque in question arose when the complainant served the first notice on 28.07.2008 and considering the limitation from that date, the impugned complaint is barred by limitation. It is submitted that complaint under Section 142(b) of the NI Act has to be filed within a month from the date of immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires i.e. on completion of one month from the expiry of 15 days from the date of the receipt of the notice dated 28.07.2008.