The main legal point established is that a complaint filed under Section 138 of the Negotiable Instruments Act is premature if it is presented before the cause of action arises, and in such cases, the Magistrate has no alternative but to acquit the accused.

G. PATRI BASAVANA GOUD, J.

( 1 ) THE appellant-complainant is aggrieved by the order of the learned judicial Magistrate First Class, Kumta, dated 25-4-2001, in C. C. No. 1928 of 1996, by which, the respondent-accused has been acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('act' for short ).

( 2 ) THE appellant-complainant presented, on 31-10-1994 to the Bank for encashment, a cheque allegedly issued by the respondent in his favour for a sum of Rs. 35,000/ -. On 3-11-1994, the appellant-complainant received intimation regarding its dishonour. On 14-11-1994, he issued notice to the respondent-accused demanding payment of the amount. The said notice was served on the respondent-accused on 2-12-1994. The appellant-complainant filed a complaint under Section 200 of the Criminal procedure Code on 12-12-1994. The learned Magistrate took cognizance on the same day, i. e. , on 12-12-1994, recorded the sworn statement, found sufficient ground to proceed, and directed issuing of process for the offence under Section 138 of the Act, in answer to which, the respondent appeared and, after recording of the plea, both went to trial, and it is thereafter that the respondent-accused has come to be acquitted by the impugned judgment and order, mainly on the ground that the complaint was premature.

( 3 ) EVEN after hearing Sri Jalisatgi, the learned Counsel for the complainant -appellant at length, I am of the opinion that, the complaint was in fact a premature one, and as such, there was no alternative for the learned Magistrate at that stage, but, to acquit the accused.

( 4 ) WHERE a cheque is dishonoured, clause (b) of the proviso to Section 138 of the Act requires that the complainant should make a demand for payment of the amount of money covered by the cheque by giving a notice in writing to the accused, within 15 days of receipt of information by the complainant from the Bank regarding the return of cheque as unpaid. Accordingly, the intimation from the Bank regarding the dishonour having been received by the complainant on 3-11-1994, the complainant gave such a notice under clause (b) of the proviso to Section 138 of the Act on 14-11-1994. Clause (c) of the said proviso enabled the accused to make payment of the said amount, i. e. , the amount covered by the cheque, within 15 days of receipt of the said notice, and it is only on his failure to do so that the offence would be committed, and the cause of action for filing of the complaint arises. The notice having been served on 2-12-1994 on the respondent-accused, the respondent-accused had 15 days time therefrom to make payment. Until the expiry of the said 15 days, it could not have been said that an offence under Section 138 of the Act has been committed, and that cause of action had arisen for the complainant to prefer complaint under Section 200 of the criminal Procedure Code alleging commission of the said offence, In fact, clause (a) of Section 142 of the Act mandates that notwithstanding anything contained in Criminal Procedure Code, no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, made in writing by the payee or as the case may be, by the holder of the cheque in due course, and clause (b) mandates that no Court shall take cognizance unless such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Two conditions are, therefore, necessary for the Court to take cognizance of the offence under Section 138 of the Act. The first condition is that, there should be a written complaint by the payee, or by the holder of the cheque in due course, and the second condition is that, such complaint should have been filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Cause of action under clause (c) of the proviso to Section 1

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