IMPORTANT POINT
While computing notice period as prescribed under Section 138(b) of Negotiable Instruments Act, the day on which the information of dishonour of cheque is received has to be excluded while calculating limitation of 15 days.

A.K. Trivedi, J. - The above referred to both the matters are filed by the same petitioners against the same respondents and as such both the matters being cognate are heard together and are being disposed of by this Common order.

2. Shri K.J. Kakkad, learned Advocate appears on behalf of the petitioners in both the matters while Mr. Y.N. Ravani learned Advocate appears for respondent No. 2 in both the matters. Learned A.P.P. Mrs. B.R. Gajjar appears for respondent No. 1 in both the matters.

3. Rule, Learned Advocates for respective parties waives service of rule.

4. The petitioners have challenged the legality and propriety of the orders passed by the learned Judicial Magistrate, Mansa. District Mehsana. That in the proceedings of Criminal Revision Applications No. 10/98 an impugned order is passed in the proceedings of Criminal Case No. 428/95 while in the proceedings of Criminal Revision Application No. 11/98, the impugned order is passed in the proceedings of Criminal Case No. 43/96.

5. The respondent No. 2 of the respective matters has prosecuted present petitioner by filing above stated criminal proceedings under section 138 of the Negotiable Instruments Act. That learned Judicial Magistrate, Mansa, District Mehsana has taken cognizance and issued summons to the petitioners as accused. That the petitioners moved application Exh. 56 dated 5-12-1997 in the proceedings of Criminal Case No. 428/95 and application Exh. 42 dated 5-12-1997 in the proceedings of Criminal Case No. 43/95. That the petitioners have contended in both the matters vide said applications that under section 138 (b) of the Negotiable Instruments Act, notice on receipt of information regarding dishonour of a cheque is required to be given within stipulated period and it is a mandatory provision. That, in the instant case, i.e., Criminal Case No. 428/95 the information was received on 10-7-1995 and the notice is issued on 25-7-1995. That calculating the days it cannot be said to have been issued within fifteen days. Similarly, in Criminal Case No. 43/95, the information was received on 5-12-1995 and the notice was issued on 20-12-1995 and as such there is a delay in sending the notice and hence complaint against the petitioners as accused should be dismissed.

6. That learned J.M.F.C., Mansa. District Mehsana heard both the applications in above stated proceedings and vide impugned orders dated 5-12-1997 rejected the applications holding that there cannot be a dispute with mandatory provisions of law for issuing a notice of fifteen days on dishonour of a cheque before filing a complaint under section 138. However, as per the facts in both the matters, the complaint has served the notice within prescribed period of fifteen days and such the applications are not tenable at law.

7. Learned Advocate Shri K.J. Kakkad has referred up and relied on the provisions of sections 138 (b) and 138 (c) of the Negotiable Instruments Act and has vehemently urged that legislature has made the provision mandatory by using specific language and as such non compliance of mandatory provisions should render the proceedings void. That learned J.M.F.C., has committed a serious error by not accepting the proposition of law canvassed at the Bar and rejecting the complaint while passing the impugned order. Shri Kakkad has further submitted that issuance of notice before filing a complaint is a condition precedent. To support the said submission, Shri Kakkad has referred to and relied on the observations made in the matter reported vide Rajiv Kumar v. State of U.P.1. It is further submitted that the Court cannot add at its wisdom in the legislative provisions particularly when mandatory provisions are made for compliance by the legislature. To support the submissions Shri Kakkad has referred to and relied on the observations made in 1992 Cri. L.J. p. 25662. Referring to observations made in the matter reported vide Harbinder Singh v. Suman Rani3. Shri Kakkad has urged that demand