CHOURADIYA TRADING COMPANY Vs. SUSHIL KUMAR

JUDGEMENT

(1.) BY this revision petition under Section 397 read with Section 401 of the cr. PC, Chouradiya Trading Company through its proprietor Ashok Kumar has challenged order dated 29-9-06 passed by the Additional Sessions Judge, Jaora, district Ratlam in Criminal Revision No. 102/06 dismissing the complaint of the petitioner complainant.

(2.) BRIEF facts as alleged are that the complainant Chouradiya Trading company as well as the respondent Sushil Kumar due to business had entered into an agreement dated 3-10-01 for transporting garlic valued at Rs. 1,10,500/-in regard to which the accused Sushil Kumar had given a cheque dated 21-3-02 drawn on Union Bank of India. When it was presented to the Bank for disbursement on 21-3-02 by the complainant, it was returned with the remark of 'insufficiency of funds' in the account and hence, the complainant sent legal notice to the accused respondent on 26-3-02 and due to non-compliance, offence under Section 138 of the Negotiable Instruments Act (for short 'the act') was registered against the accused.

(3.) THE Trial Court on considering the evidence, however, found that the complaint was premature under Section 142 of the Act and dismissed the plaint, since according to the mandatory provisions of the Act, a notice of 15 days has to be given to the accused for repayment, which was not done under the circumstances. Counsel for the accused, therefore, orally prayed on 17-4-06 before the Trial Court that the complaint was not maintainable since the mandatory period under Section 142 of the Act was not fulfilled and a valuable right accrued to the accused and the complaint was filed before the Court before the expiry of the mandatory period. The complainant/non-applicant opposed the prayer stating that although the complaint had been filed prematurely, cognizance of the offence was taken by the Court only on 28-9-02, thus, it had allowed more than sufficient time under Section 142 of the Act and hence it could not be said that the complaint was premature. Relying on the directions made in the matter of Bapulal Vs. Krupachand Jain, 2005 CLDC 18, the Court held that a complaint cannot be dismissed, even if it is prematurely filed, what has to be seen is that the mandatory period for repayment has been allowed the accused under Section 138 of the Act before taking cognizance of the complaint and hence, the Trial Court in the present case had held that the complaint was maintainable and therefore, proceeded in the matter.