IMPORTANT POINT
Where on Dishonour of cheque, complaint is filed by payee before expiry of period of 15 days from date of service of notice, such complaint is premature and no cognizance can be taken by Magistrate even after expiry of said period of 15 days.

P.S. Narayana, J.—Heard Ms. Ch. Sujatha, the learned Counsel representing Ramachandra Rao, Counsel for the appellant.

2. This Court by Order dated 16th August, 2004 in view of the decision in Sri Koteshwari Lace Industries v. Madasu Parasuram1 had referred the question “Whether the period of 15 days as specified in Section 138 of the Negotiable Instruments Act is mandatory or is only a technicality, which can be got over and even prior to the expiry of the time if the complaint is filed, whether it would be premature or such complaint is maintainable.”

3. The Division Bench by Order dated 1.9.2004 had answered the reference as hereunder:

The learned Judge while referring the decision in Sri Koteshwari Lace Industries v. Madasu Parasuram, referred the above said reference for appropriate Orders. But we need not dwelve upon this question any further in view of the Judgment of the Division Bench of this Court in N. Venkata Siva Ram Prasad v. Rajeswari Construction2 in which, one of us (G. Bikshapathy, J.) was also a party. It has been clearly held by the Division Bench that where on dishonour of cheque, the complaint was filed by payee before expiry of period of 15 days from the date of service of notice as prescribed under Proviso (C) to Section 138 of the Negotiable Instrument Act (1881) (as amended by Amendment Act of 1988), such complaint is premature and no cognizance could be taken by the Magistrate even after expiry of the said period of 15 days. In view of this, no further Orders are necessary, Ms. Ch. Sujatha, learned Counsel representing for appellant would contend that the decision of the Division Bench in N. Venkata Siva Ram Prasad v. Rajeswari Constructions (supra) was not brought to the notice of the learned Single Judge in Sri Koteshwari Lace Industries v. Madasu Parasuram and another (supra) and hence, the said view was expressed by the learned Judge.

4. A private complaint was filed by the appellant herein under Section 138 of Negotiable Instruments Act, alleging that the accused had approached the complainant in the month of March, 1994 for hand loan of Rs. 2,00,000/- for business purpose and that the appellant—complainant agreed for the request and arranged cash and while receiving the amount, the accused executed a promissory note on 3.4.1994 and also issued a post dated cheque, dated 3.8.1996 bearing No. 0074164, drawn on State Bank of Hyderabad, Bhoiguda Branch as assurance for the amount and at the request of the accused, the cheque was presented in the Central Bank of India Branch, Hyderabad for encashment on 8.10.1996 and the same was returned for the reasons as payment stopped by the drawer as per the memo of SBI, Bhoiguda Branch, dated 9.10.1996 and it was sent to the appellant-complainant bankers on 10.10.1996 and thereafter the appellant-complainant got issued a legal notice on 21-10-1996 through registered post with acknowledgment due and also under certificate of posting dated 22.10.1996 and the said legal notice was received by the accused on 5.11.1996 and that the accused had issued reply on 6.11.1996, denying his liability and hence, the complaint was filed.

5. It is not in controversy that the notice was served on 5.11.1996 and the said day is to be excluded, the cause of action for filing complaint would arise only on 21.11.1996, or subsequent thereto and not earlier. But however, the complaint was filed on 20.11.1996. In the light of the same, on the ground that the cause of action did not occur and the complaint was premature a finding had been recorded and accused was acquitted. Aggrieved by the same, the present appeal has been preferred.

6. In view of the fact that strong reliance was placed on the decision of a learned Single Judge of this Court, that a complaint cannot be thrown out on the ground of technicalities 1997 (2) ALT (Crl.) 45 AP, the matter was referred to the Division Bench. But however, in the light of the view expressed by the Division Bench of this Court in 1996