MOHD JAHIN Vs. NIBBAJI

JUDGEMENT

(1.) Applicant has filed this petition invoking the jurisdiction under Section 482 of the Cr.P.C. against an order dated 21.07.2011 passed by Judicial Magistrate, First Class Multai framing the charge under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act') and also challenging the order dated 08.02.2012 passed in revision by the First Additional Sessions Judge, Multai, District Betul in Criminal Revision No.127/2011, dismissing the same maintaining the order of trial Court.

(2.) The facts not disputed in the present case are that a private complaint under Section 138 of N.I. Act was filed by the complainant on 19.08.2009 on account of dishonoring the two cheques bearing numbers 685907 and 685908 of the sum of Rs.1,50,000/- and 1,80,000/- respectively issued on 12.03.2009 and 12.4.2009. The first cheque was submitted to the Bank on 09.04.2009 and the information of dishonoring was received on 25.04.2009. The notice was sent to drawer on 28.04.2009 which remained unserve, thereafter, second notice was sent on 31.07.2009 by publication. The Second cheque was submitted to the Bank on 22.04.2009 the intimation of dishonor was received on 11.05.2009. The notice was sent on 15.6.2009 which remained unserve, however a second notice was sent on 31.07.2009 by publication. However, the said private complaint was filed on 19.08.2009 within 30 days from the date of publication of notice.

(3.) The applicant inter-alia contends that in view of the provisions contained under Section 138 proviso (a)(b)(c) of N.I. Act, to maintain a private complaint, compliance of all the ingredients of the provisions is essential by the payee, in absence the cause of action to prosecute the complaint do not accrue to him. In the present case, notices either of the first cheque or of the second cheque were issued after a period of 30 days, therefore, in absence of compliance to the proviso (b) of Section 138 of the Act, the complaint is not maintainable and the charges as framed by the trial Court to adjudicate the complaint is beyond the jurisdiction and also not in accordance to law. To buttress his submissions, reliance has been placed on the judgment of the Apex Court in the Case of Tameeshwar Vaishnav vs. Ramvishal Gupta, 2010 2 SCC 329, and also on the case of Kamlesh Kumar vs. State of Bihar, 2014 3 MPHT 512 (SC) . It is submitted, if the complaint is not maintainable, the question of framing of charge do not arise, however, the private complaint may be dismissed as not maintainable and the order impugned may be set aside.