IMPORTANT POINT
Complaint u/s 138 of Negotiable Instruments Act filed without giving 15 days time to drawer of cheque to make payment of dishonoured cheque from receipt of notice of demand is premature and not maintainable.

T. Ranga Rao, J - This petition is filed under Section 482 Cr. P.C. to quash the orders dated 4-1-1997 in Criminal Revision Petition No. 5/95 on the file of the Sessions Judge, Chittoor.

2. The facts in giving rise to the filing of this petition are briefly, as follows: -

The first respondent filed a complaint against the petitioner for an offence under Section 138 of the Negotiable Instruments Act alleging that the complainant is doing business in the name and style of M/s. Sri Jyothi Trading Company dealing in pesticides and chemical fertilizers and the accused has been carrying on dealings with the complainant-firm by purchasing chemical fertilizers on credit system and has been found due a sum of Rs. 2,28,600/- and then the accused issued ten cheques for Rs. 20,000/- each and one cheque for. Rs. 200/- on 7-6-1993 to be drawn on Central Bank Limited. Chitoor and also issued two more cheques on 12-6-1993 one for Rs. 20,000/- and another for Rs. 8,600/-. The cheques were presented in Canara Bank, Chittoor finally on 20-111993 for collection and the cheques were returned except the cheque for Rs. 200/- with an endorsement "No funds in the accounts".

3. Then the complainant-first respondent got issued notice on 30-11-1993 and filed the complaint on 30-11-1993.

4. The petitioner filed a petition under Section 258 Cr. P.C. before trial Court requesting to discharge him and the said petition was allowed on 30-12-1994.

5. Aggrieved by the said order, the first respondent filed a revision in Crl. R.P. No. 5/95 before the Sessions Judge and the learned Sessions Judge allowed the revision on 4-1-1997 setting aside the order of the learned Magistrate. Aggrieved by the said order the petitioner filed this petition.

6. The learned counsel for the petitioner submitted that the notice was issued on 30-11-1993 and the complaint was filed on the same day i.e., on 30-11-1993 without giving fifteen days time to pay the amount as contemplated under Section 138(c) of the Negotiable Instruments Act and hence, the complaint is premature and liable to be dismissed as not maintainable and the learned Magistrate has rightly discharged the petitioner-accused, but the learned Sessions Judge without appreciating the material on record erroneously allowed the revision setting aside the order of the learned Magistrate.

7. But the learned counsel for the respondent submitted that the petitioner filed a petition under Section 482 Cr. P.C. to quash the orders of the learned Sessions Judge in Crl. R.P. No. 5/95 and infact, he ought to have filed a revision against the orders of the learned Sessions Judge and hence, the petition is not maintainable under Section 482 Cr. P.C. He further submitted that the petitioner is not entitled to seek discharge under Section 258 Cr. P.C. and the learned Sessions Judge has rightly held the same and hence, the petitioner is not entitled to any relief in this petition.

8. It is true that the petitioner is not entitled to seek discharge under Section 258 Cr. P.C. in this case and the learned Sessions Judge has rightly held the same. It is relevant to mention if the petition is filed seeking to discharge quoting a wrong section of law, if the material on record discloses that the complaint is not maintainable the Court is perfectly justified in discharging the accused and the petition cannot be dismissed on the ground that wrong provision of law is mentioned. The Supreme Court in a decision K.M. Mathew v. State of Kerala and Another1 has held that even in the absence of any specific provision to drop the proceedings or rescind the process, the Magistrate is entitled to consider the objections raised by the accused after their appearance and drop the proceedings if there is no sufficient material on record to proceed against the said accused persons. In the above decision their Lordships observed as under: -

When the accused enters appearance in response to the summons the Magistrate has to take proceedings under Chapter XX