MOHAR SINGH Vs. LAKHAN SINGH

JUDGEMENT

(1.) PETITIONER has filed this petition under Section 482, Cr. PC for quashment of the order dated 29-8-2005 passed by the Chief Judicial Magistrate, Vidisha in Criminal Case No. 1666/03, whereby though the Trial Court rejected the application filed by the respondent/accused on 15-4-2005 for dismissing the complaint on the ground of barred by limitation, but observed that the complaint ought to have been filed within the period of 15 days from the first notice dated 30-6-2003. Against that observation, the petitioner has filed this petition because the observation may come in his way at the time of final disposal and may prejudice this case.

(2.) THE brief facts of the case are that the respondent took loan of Rs. 2,22,000/- from the petitioner and for repayment of the said loan he issued a cheque No. 164351, dated 11-6-2003 of Allahabad Bank Branch Vidisha. The aforesaid cheque was presented for collection to his banker and the said cheque was dishonoured on 21-6-2003 with an endorsement for want of fund and thereafter on 23-6-2003 the Bank intimated about the dishonour of the cheque. First notice was issued to the respondent on 30-6-2003, which returned un-served. Thereafter, second notice was issued on 23-7-2003, which was also returned unserved with endorsement that the respondent is out of station for pilgrimage. Thereafter, third notice was issued on 6-9-2003, which was served on 15-9-2003. The intimation of the said service of notice was given by post office to the petitioner on 10-10-2003 and since the amount was not paid despite the service of notice, the petitioner filed a complaint on 22-10-2003. Therefore, contention of the petitioner is that his complaint is within limitation, therefore, the observation of the Court that the complaint should have been filed within one month from the date of 30-6-2003 is contrary to the provisions of law.

(3.) I have heard the learned Counsel for the parties. The contention of the learned Counsel for the petitioner was that the service of notice is a mandatory requirement and without service of notice the complaint cannot filed unless 15 days time is granted to the respondent after service. Therefore, the petitioner was entitled to repeat the notice and to intimate him about the dishonour of cheque and to make a demand from him. Petitioner submitted that the provisions of Section 138 and Section 142 of the Negotiable Instruments Act are very clear and according to the aforesaid provisions, the period of limitation of one month will expire after 15 days from the receipt of the notice and he laid much emphasis on the word "receipt of the said notice", as provided in Clause (c) of the proviso to Section 138 of the Act. His further contention was that if the notice of 30-6-2003 would have been served or the respondent would have refused, then in that case certainly he could have waited for 15 days and filed complaint within 30 days but when the notice was not served and under Section 142 of Negotiable Instruments Act cause of action will arose on receipt of notice which is a mandatory requirement, therefore, it was necessary for the petitioner to service a repeat notice to the respondent, in which he has not committed any illegality and has filed the complaint within limitation. Therefore, his contention was that the complaint was within time and the observation of the Court is not legal, therefore the same is liable to be quashed, as the same may come in his way at the time of final disposal, which will ultimately shall adversely prejudice his case.