1. This is a petition filed at the instance of Kumari Sunita Charak hereinafter referred to as the accused for quashing the proceedings under Section 138 of the Negotiable Instrument Act, initiated by Ajay Kumar Sharma, hereinafter, referred to as the Complainant, which are pending in the Court of Judicial Magistrate Billawar.

2. Facts as they emerge, from the petition and the documents attached with it are by and large brief, which are noticed hereinafter.

3. As per complainant a Cheque in the sum of Rs. 20,000/- was issued by the accused in his favour when presented for encashment, it was dishonoured by the Banker of the accused on 30.6.1998, intimation regarding such dishonour was received by the complainant on 3.7.1998. No action was initiated by him nor any notice of dishonour was issued.

Cheque was again represented for encashment. This was again dishonoured by the Banker of the accused on 12.8.1998. Intimation in this behalf was received by the complainant on 24.8.1998. A notice of dishonour as also calling upon the accused to make the payment was also issued on 2.9.1998 by the complainant. Finally, the complaint under Section 138 of the Negotiable Instruments Act was filed before the trial Magistrate on 9.9.1998. After the preliminary evidence had been recorded by the trial Court and on its being satisfied that a prima facie case under Section 138 of the Negotiable Instruments Act is made out against the accused, summoning order was passed against him. Petition has questioned that summoning order in the present proceedings.

4. Learned counsel appearing for the petitioner placed reliance on the provisions of Section 138 of the Negotiable Instruments Act, particularly Proviso (c) thereof and on its basis, he urged that the complaint was liable to be dismissed being premature. On the other hand, learned counsel appearing for the complainant fairly admitted that the complaint is definitely premature but urged that it is not liable to be dismissed, because the accused even after the expiry of fifteen days of the receipt of notice, which was despatched on 2.9.1998 has not cared to pay the amount of the cheque in question therefore, prematurity of the complaint does not entitle the accused to ask for its dismissal. Reliance in this behalf was placed on a decision of Rajasthan High Court reported in 1999 Cri. L.J. 949 = 1999 ISJ (Banking) 576, Bhanwar Lal Petitioner v. State of Rajasthan. With a view of properly appreciate the respective contentions provision of section 138 (supra) need to be referred to which are extracted herein below :-

[Text of Sec. 138 omitted. Ed.]

This provision has been brought on the Statute Book by the Banking Public Financial institutions and Negotiable Instruments Laws (Amendment) Act 1988 with effect from 1st April, 1989.

5. The purpose of inclusion of Section 138 to 142 by this Amendment Act was to enhance the acceptability of cheques in settlement of liabilities by making the drawerliable for penal consequences in case the cheque issued by him bounces for any reasons, may be due to insufficiency of funds or it exceeds the arrangements or payment having been stopped by providing time schedule within clauses (b) and (c) of the proviso to Section 138 (supra) even after the issuance and dishonour of the cheque. In fact adequate protection is given to an honest drawer of cheque. Because when a cheque is issued, there may be a situation that the drawer may be anticipating that by the time is it sent for clearance by the Drawee/its holder in due course for encashment, his funds may pour in or that he had put cheques for clearance, which may come after encashment and the amount credited to his account. There can be so many such eventualities in the course of business. Irrespective of all those after dishonour within the time frame there is another opportunity for the Drawer of make payment of the dishonoured cheque. It is only after the failure of the Drawer to absolve himself by making payment of