For maintaining a private complaint under Section 138 of the Negotiable Instruments Act, a statutory notice under Section 138(c) should precede the filing of the private complaint.

K. Sreedhar Rao, J.--Heard. The revision filed against the order of JMFC, Ron passed in CC No. 40 of 1994, dated 23.1.2001. The Petitioner is the complainant filed a private complaint initially on 17.10.1994 under Section 200 Code of Criminal Procedure against the Respondent herein for an offence punishable under Section 420 of Indian Penal Code in respect of a dishonour of a cheque issued by the Respondent dated 11.1.1994. The dishonour is dated 12.1.1994. Immediately thereafter a private complaint is filed and the Magistrate referred the complaint for investigation to the police. The said order was challenged in Criminal Petition No. 525 of 1995. This Court disposed of the Criminal Petition by the order dated 8.1.1997 directing the Magistrate to proceed with the case as a private complaint and held that reference for investigation under Section 156(3) is bad in law. After filing of the private complaint and during the pendency of the criminal petition before this Court, the complainant issued a notice under Section 138(c) of the Negotiable Instruments Act on 26.10.1994. The notice is served on the Respondent on 29.10.1994. The said material was also placed before the trial Court. After the orders are passed in Criminal Petition 525 of 1995, the Magistrate recorded the sworn statement and after consideration of oral and documentary material dismissed the complaint. Being aggrieved, the present revision is filed.

2. An application is also filed in IA-I for condonation of delay of 120 days in filing this petition. The contention of the Counsel that pursuant to the orders in Criminal Petition 525 of 1995, the trial Court ought to have considered the complaint and should have taken into consideration the legal notices issued within the statutory period envisaged under Section 138(3) of the Negotiable Instruments Act in view of the order passed by this Court in Criminal Petition No. 525 of 1995 and in that view the complaint cannot be held to be barred by time.

3. I am unable to agree with the said submissions. The notices under Section 138(c) are issued subsequent to the institution of the private complaint. On the strength of the said notices, it cannot be argued that the private complaint dated 17.10.1994 should be construed as one filed by proper compliance of the provisions of Section 138. The orders passed by this Court in Criminal Petition No. 525 of 1995 cannot be interpreted to mean that the Petitioner can by-pass the necessary legal requisites to file the complaint. In fact in order to maintain a private complaint under Section 138 of the Negotiable Instruments Act, it is mandatory that a statutory notice under Section 138(c) of the Negotiable Instruments Act should precede for filing of the private complaint. In this case, the complaint is filed earlier in point of time and subsequent thereto the notices are issued. The said course of action is not permissible in law.

4. Under the circumstances, I find no merit in the petition. Accordingly, both the IA-I and the main petition are dismissed.