Heard. Rule, made returnable forthwith. Parties are referred with their original status as complainant and accused.

2. In an Appeal against conviction for offence under Section 138 of Negotiable Instruments Act, the appellate Court allowed the appeal.

3. On 14th February, 2013, matter was argued extensively. However, Mr. Bhokarikar felt, considering the scope and nature of Appellate order and the relief which was sought from this Court, to convert the Criminal Revision Application into Criminal Writ petition. Accordingly, he was permitted to do so.

4. Learned Sessions Judge found that on 22nd November, 2002, there was intimation of dishonour of cheque to the complainant. The transaction being prior to 6th February, 2003 (prior to amendment in Negotiable Instruments Act), the complainant was expected to serve statutory notice within 15 days. By calculation, it should have been upto 7th December, 2002, however, notice was dispatched on 9th December, 2002. This is more so indicated on the postal receipt produced in evidence. Learned Sessions, on these factual aspects, held that the notice was beyond the period of limitation and allowed the Appeal.

5. Effect of Section 138 of Negotiable Instruments Act and penalty or conviction, as the case may be, comes into operation only on strict adherence of condition in clauses (a), (b) and (c) of the proviso. The legal position was explained in the matter of Sivakumar Vs. Natarajan, 2009(5)Bom. C.R. 271 : [2009 ALL MR (Cri) 2165 (S.C.)] by observing in paragraph 10, that, by reason of provisions of Negotiable Instruments Act, a legal presumption in regard to commission of a crime has been raised. The proviso appended thereto, however, states that nothing contained in the main provision would apply unless conditions specified in Clauses (a), (b) and (c) thereof are complied with. Clauses (a), (b) and (c) of the proviso, therefore, lay down conditions precedent for applicability of the main provision. Section 138 of the Act being penal in nature, indisputably, warrants strict construction. The Apex Court also considered earlier pronouncement in the matter of M/s. Harman Electronics (P) Ltd. and anr. Vs. M/s. National Panasonic India Ltd., 2008(16) SCALE 317 : [2009 ALL MR (Cri) 280 (S.C.) : 2009(1) ALL MR 479 (S.C.)] wherein, Hon'ble Supreme Court held:

"The proviso appended thereto imposes certain conditions before a complaint petition can be entertained."

6. This legal position enumerated, cannot be overlooked though learned counsel made passionate submission that there was business relations between the parties, or that the liability has been established.

7. The learned counsel for complainant, having converted the Revision Application into Writ Petition, feels that the Rule of equity will be available to the complainant. For such purposes, reliance was placed to the judgment in the matter of Mrs. Manju Bhatia and another Vs. New Delhi Municipal Council and another, AIR 1998 SC 223. In the said case, a building was constructed illegally, sold to some flat owners, it was demolished since it was unauthorised. The flat owners were unaware of illegal construction. The Supreme Court held that they were entitled to be re-compensated for the loss suffered by them.

8. In the matter of Pan chug opal Barua Barua and ors. Vs. Umesh Chandra Goswami and ors, AIR 1997 SC 1041, the Supreme Court was dealing with a Second Appeal, its tenability and observed, equitable jurisdiction must be exercised so as to prevent perpetration of legal fraud, promote honesty and good faith. Party seeking relief in equity must come to the Court with clean hands.

There is no contest on legal preposition indicated by Hon'ble Supreme Court. Fraud unravals everything.

9. The facts, in this case, does not project a fraud played by the accused to induce the complainant, to part with his money or with dishonest intention. The proceedings was strictly under banner of 138 of Negotiable Instruments Act. Consequently, parameters