A complainant is not required to issue a notice under Section 138(b) of the Negotiable Instruments Act within 15 days of the first default, and a magistrate can forward an accused to a higher court for a more severe punishment under Section 325(1) of the CrPC.

( 1 ) THIS petition has been filed by the petitioners under section 482 of the Criminal Procedure Code for quashing the proceedings pending in the Court of Shri J. P. S. Malik, Metropolitan Magistrate, New Delhi, pursuant to a complaint filed by the respondent wherein it is alleged that the petitioners have committed an offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to the Act ).

( 2 ) BRIEFLY stated the facts of the case are that the petitioners indischarge of their debt/liability drew 11 cheques for a total amount of Rs. 6,20,046. 69 in favour of the respondent. All these cheques when presented by the respondent during the period of validity of the cheques through its bankers, State Bank of India, NOIDA, were dishonoured by the bankers of the petitioners. Six of these cheques were returned with the remark "exceedes arrangement" and the remaining five cheques were rerturned with the remakrs "insufficient funds" along with memo dated 27th July, 1991. Therefter,the respondent by registered A. D. letter dated 3rd August, 1991 sent a notice to the petitioners for making payment of the amount of the cheques within 15 days of the rceipt of the notice. Since the petitioners failed to make the payment of the amount demanded with in the period stipulated in the notice, the respondent filed a complaint under section 138 of the Act.

( 3 ) AFTER perusal of the complaint and recording of the preliminary evidence, the learned MM vide his order dated 29th February, 1992, summoned the petitioners to appear on 25th May 1992 for an offence punishable under section 138 of the Act. On 31st October, 1992 notice under section 251 Cr. P. C. was given to the petitioners and the case was adjourned to 18th December, 1992 for complainant s evidence. Aggrieved by the aforesaid orders, the petitioners have filed the present petition for quashing of the proceedings before the learned MM.

( 4 ) MS. Shefali Khanna, learned counsel for the petitioners has urged the following 131 contentions.

1) That six cheques out of the total Ilcheques were dishonoured in the first instance on 10th April, 1991 and the remaining five cheques were dishonoured in the first in stance on 16th April, 1991 and the respondent was required to issue notice under clause (b) of proviso to section 138 of the Act within 15 days of the first default and since the respondent failed to do so, its remedy has been lost. 2) Under section 138 of the Act, the punishment prescribed is imprisonment upto one year or fine which may extend to twice the amount of the cheque or with both and twice the amount of one cheque of the lowest amount comes to Rs. 45,175. 50 but under section 29 (2) Criminal Procedure Code a 1st Class Magistrate is empowered to pass a sentence upto a fine not exceeding Rs. 5000. 00 and as such the learned MM had no jurisdiction to entertain the complaint filed by the respondent. 3) The rsspondent has filed one complaint pertaining to dishonouring of 11 cheques whereas it was required to file one complaint in respect of each cheque as dishonouring of every cheque constitutes one offence.

( 5 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. The first contention urged by the learned counsel for the petitioners has no force as the Act does not compel the complainant to issue a notice under clause (b) of proviso to section 138 of the Act within 15 days of the first default. Subject to the outer limit prescribed, there could be representation of the cheque and the cause of action for the complaint would arise only when prusuant to the dishonouring of the cheques, notice was issued within 15 days of the dishonouring and there was refusal/failure to pay. Since the represenation of the cheques in the present case was within the outer limit prescribed and the notice was issued within 15 days of the last dishonouring of the cheque, the complaint could not be dismissed on