IMPORTANT POINT
The date on which the information from the Bank was received by the payee or the holder of the cheque is to be excluded while reckoning the period of thirty days within which the payee is required under proviso (b) to Section 138 of the Act to give a notice in writing to the drawer of the cheque making a demand for the said amount of money.

ORDER

Dilip Raosaheb Deshmukh, J.—In this revision, the order dated 19.7.2006 passed by Shri G.K. Mishra, Additional Sessions Judge, Korba (hereinafter referred to as ‘the ASJ’) in Criminal Revision No. 6/06 is under challenge, whereby the order dated 21-02-2006 passed by the Judicial Magistrate First Class, Korba rejecting the objection as to the maintainability of the complaint filed by the applicant herein under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) was reversed.

2. Brief facts are that during commercial transactions, to satisfy a legally enforceable debt, Cheque No.154749 dated 9.4.2003 drawn by the non-applicant on Indira Priyadarshini Mahila Nagrik Sahakari Bank Limited, Press Complex, Sadar Bazar, Raipur (C.G.) for a sum of Rs. 5,00,000 was given to the applicant which was presented by the applicant to his banker, i.e., the Bank of India, Branch Korba (hereinafter referred to as ‘the Bank’). On 23.8.2003, the applicant received information from the Bank that the aforesaid cheque had bounced due to lack of sufficient balance in the account of the non-applicant.

3. Upon receipt of such information from the Bank, the non-applicant was informed by the applicant on telephone on the same day and several times thereafter that the cheque drawn by him has been returned unpaid. On 22.9.2003, the applicant sent a notice in writing under proviso (b) to Section 138 of the Act to the non-applicant under certificate of posting. Despite receipt of notice, the non-applicant failed to make payment of the said amount of money to the applicant within the statutory period mentioned in Section 138(c) of the Act. A complaint was filed by the applicant on 21.10.2003 before the Chief Judicial Magistrate, Korba under Section 138 of the Act. Statement on oath of the applicant under Section 200 of the Code of Criminal Procedure was recorded by the Chief Judicial Magistrate, Korba, who took cognizance of the offence under Section 138 of the Act on 31.10.2003 and issued notice to the non-applicant. On 24.12.2004, an objection was filed by the non-applicant regarding the maintainability of the complaint on the sole ground that legal notice as contemplated under Section 138(b) of the Act was not given by the applicant within the statutory period of thirty days from the receipt of information by the applicant from the Bank regarding the return of the cheque as unpaid. This application was considered by Shri P.S. Markam, Judicial Magistrate First Class, Korba (hereinafter referred to as ‘the Magistrate’), to which Court the case was transferred on 15.9.2004.

4. Although, the objection as to maintainability of the complaint pertained to proviso (b) to Section 138 of the Act, the Magistrate considered the objection as if it was for non-compliance of sub-clause (b) of Section 142 of the Act. Consequently, the objection was turned down on the ground that the applicant had within one month of the notice dated 22.9.2003 made the complaint as contemplated under Section 142(b) read with proviso (c) to Section 138 of the Act.

5. Being aggrieved, the non-applicant herein preferred Criminal Revision No.

6/06 before the Sessions Judge, Korba. By the impugned order, the ASJ allowed the revision on the ground that notice as contemplated by the proviso (b) to Section 138 of the Act was not given by the applicant/payee within thirty days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. The ASJ reckoned the period of limitation from 23.8.2003, i.e., including the date of receipt of information by the payee from the Bank regarding the return of the cheque as unpaid and arrived at a conclusion that the notice dated 22.9.2003 having been given on the 31st day was beyond the statutory period of thirty days provided under the proviso (b) to Section 138 of the Act. As a result, the ASJ held that the cognizance taken by the Magistrate was bad for non-compliance of the proviso