IMPORTANT POINT
Law does not require 15 days notice as it contemplates service of notice and payment of amount of the cheque within 15 days of the receipt of the notice.

ORDER

S.R. Waghmare, J.—By this revision petition under Section 397 read with 401 of the CrPC, Chouradiya Trading Company through its proprietor Ashok Kumar has challenged order dated 29.9.2006 passed by the Additional Sessions Judge, Jaora, District Ratlam in criminal revision No.102 of 2006 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 3.10.2001 for transporting garlic valued at Rs. 1,10,500 in regard to which the accused Sushil Kumar had given a cheque dated 21.3.2002 drawn on Union Bank of India. When it was presented to the Bank for disbursement on 21.3.2002 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 26.3.2002 and due to noncompliance, 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 17.4.2006 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 28.9.2002, 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 v. Krupachand Jain1, 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.

4. The accused being aggrieved, had filed a revision before the Additional Sessions Judge, Jaora that the application ought to have dismissed also on the ground that the legal notice sent by the complainant was also bad in law, since it is stated that the money was to be refunded within ten days. Moreover, from the above dates, it was also obvious that the complainant has not availed a period of 30 days subsequent to the dishonour of the cheque, but had filed the complaint prematurely and hence the Trial Court ought to have dismissed the same. The Revisional Court by the impugned order dated 29.9.2006 upturned the finding for the Trial Court and held that the complaint was not maintainable and the mandatory period of 15 days as prescribed under the Act was not given to the accused for repayment as mentioned in the notice. The complainant being aggrieved has filed the present revision.

5. Counsel for the petitioner has pointed out that the cheque dated 21.3.2002 was dishonoured. Notice dated 26.3.2002 had been sent and was received immediately on the next date by the accused on 27.3.2002 and the complaint was filed before the Court on 3.4.2002 which clearly indicates that sufficient time for repayment had not been granted. However, cognizance was taken by the Trial Court for offence under Section 138 of the Act only on 28.9.2002 i.e. after about a period of almost of six months and hence the Trial Court had properly placed reliance on Bapulal v. Krupachand Jain, whereby on the