IMPORTANT POINT
When complaint u/s 138 of Negotiable Instruments Act is filed on 26-6-1998 after the notice was issued on 13-6-1998 but Magistrate took cognizance on 18-11-1998, complaint could not be held not maintainable.

U.S. Tripathi, J. - This revision has been directed against the order dated 30-6-2000 passed by Xth Additional Sessions Judge. Kanpur Nagar in Criminal Revision No. 428 of 1999 allowing the revision and setting aside the order dated 8-10-1999 passed by IInd Additional Chief Metropolitan Magistrate in Criminal Case no. 861 of 1998 rejecting the objection of the opposite party no. 2 against the summoning order.

2. It appears that applicant. Smt. Hem Lata Gupta, filed a complaint against opposite party no. 2. Smt. Manju Rathi on 26-6-1998 under Section 138. Negotiable Instruments Act with the allegations that on 29-5-1998, the opposite party no. 2 had issued four cheques of different amounts relating to Punjab National Bank. Nayaganj -Branch. Kanpur payable to applicant. The applicant presented above cheque to her Bank for realisation. On 11-6-1998 she was informed that the account of Smt. Manju Rathi had been closed and therefore the cheques were dishonoured. The applicant accordingly, sent a notice to opposite party no. 2 on 13-6-1998. But the opposite party no. 2 either paid any amount nor replied the notice hence she filed complaint on 26-6-1998.

3. The applicant examined herself under Section 200. Cr. P.C. and her witnesses Rajendra Kumar (P. W. 1) and Satish Singh Chauhan (P.W. 2) under Section 202. Cr. P.C. On perusal of the statement of complainant under Section 200 and her witnesses under Section 202. Cr. P.C. the learned Additional Chief Metropolitan Magistrate summoned the opposite party No. 2 under Section 138. Negotiable Instruments Act, vide order dated 18.11.1998.

4. On her appearance opposite party no. 2 filed objection against the summoning order on the ground that the cheques issued by her were post dated. According to complainant, the notices were issued on 13-6-1998, but the complaint was filed only on 26-6-1998, while complaint could be filed only after 15 days of the service of the notice. Therefore, complaint was liable to be dismissed on this ground.

5. The learned Additional Chief Metropolitan Magistrate on considering the above objection held that complaint cannot be dismissed merely on the ground that it was filed prior to expiry of 15 days from the date of service of notice. Therefore, objection had no force. With these findings he rejected the objection of the opposite party No. 2, vide order dated 8-10-1999.

6. Aggrieved with the above order, the opposite party No. 2 filed Criminal Revision No. 428 of 1999 before the Sessions Judge. The revision was decided by Xth Additional Sessions Judge, Kanpur nagar, who held that since the complaint was filed prior to expiry of 15 days of the date of notice, it was premature and not maintainable. With these finding, he allowed the revision, set aside the order of the Additional Chief Metropolitan Magistrate and dismissed the complaint being premature.

7. The above order of Additional Sessions Judge has been challenged in this revision.

The opposite party No. 2 was served with the notice and also filed vakalatnama of Sri Rajendra Kumar Pandey and Dr. Archana Pandey. Advocates, but on the date of hearing none appeared from the side of opposite party No. 2.

8. Heard the learned counsel for the applicant and learned A.G.A. and perused the record, as none appeared from the side of opposite party No. 2.

It was contended by the learned counsel for the applicant that the Additional Sessions Judge allowed the revision and dismissed the complaint simply on the ground that complaint under Section 138 Negotiable Instruments Act was filed premature, prior to expiry of 15 days from the notice. He further contended that Section 138 of Negotiable Instruments Act bars taking of cognizance within 15 days from the date of service of notice, but there is no bar in filing complaint prior to expiry of 15 days, as filing of complaint and taking cognizance are two different stages. In support of his above contention he placed reliance on Apex Court decision in Narsingh Das Tapadia v. G