IMPORTANT POINT
Even when accused refused to accept notice issued u/s 138(b) of Negotiable Instruments Act, complaint has to be filed after expiry of 15 days from date of receipt of notice.

ORDER

M.P. Chinnappa, J. - This petition is filed under Section 482, Criminal Procedure Code to quash the proceedings pending against the petitioner in C.C. No. 13178 of 1990 (P.C. 71 of 1989), on the file of the III Additional Munsiff and Judicial Magistrate, First Class, Mangalore, Dakshina Kannada.

2. The brief facts of the case are the respondent filed a complaint under Section 200, Criminal Procedure Code on the allegation that the petitioner issued a cheque in a sum of Rs. 83,894/- towards repayment of the amount due to the respondent. The said cheque is dated 31-7-1989. The respondent presented the cheque to the bank but the same was dishonoured by the bank with an endorsement 'stopped payment'. Thereafter on 13-9-1989 the respondent got issued a legal notice to the petitioner. The said legal notice was returned un-served with a postal shara that addressee refused. Hence, the complaint was filed on 27-9-1989 before the Court. The learned Magistrate after taking cognizance of the offence directed to issue process. The said order is questioned in this case.

3. Heard the learned counsel for petitioner. Though notice was served on the respondent, he did not choose to appear or appoint a counsel.

4. The only contention raised by the petitioner in this case is that the respondent has not given 15 days time to the petitioner as contemplated under Section 138(b) of the Negotiable Instruments Act (for short 'the Act'). According to Section 138(b) of the Act, the payee or the holder in due course of the cheque, as the case may be makes a demand for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque, within 15 days of receipt of the information by him from the bank regarding the return of the cheque as unpaid: and according to Section 138(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be to the holder in due-course of the cheque, within 15 days of the receipt of the said notice. From this it is clear that 15 days time has to be given as specified above.

5. It is no doubt true that he has complied with the requirement of Section 138(b) of the Act by sending a notice to the petitioner and the notice also is deemed to have been served on the petitioner as he refused to receive the notice. The question is whether he has complied with the requirement of Section l38(c) of the Act. The respondent ought to have given 15 clear days notice. In this case he has issued notice on 139-1989 and filed the con1plaint on 27-9-1989. Thus, it is clear he had not given 15 clear days notice. The complaint can be entertained by the Court only under Section 142 of the Act, which reads:

“Cognizance of offences. - Not withstanding anything contained in the Code of Criminal Procedure. 1973 (2 of 1974),

no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or as the case may be the holder in due course of the cheque:

such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:

no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138."

The cause of action arises as contained in clause (b) of Section 142, only after the expiry of 15 days from the date of receipt of the notice.

6. In this case, from the perusal of the complaint itself, it is clear that he had issued the notice on 13-9-1989 and the complaint is filed on 27-9-1989. That on 31-7-1989 the accused issued the cheque bearing No. 235360 for Rs. 83,894/- in favour of the complainant, drawn on Syndicate Bank. Madhawanagar. The said cheque had been duly presented before the Corporation Bank. Pandeshwar Mangalore, which was returned by the bank unpaid with an endorsement "payment stopped by the drawer". The cheque in question has been issued by the accu