M.R. Shah, J.—Present application has been filed by the applicant-original accused under Section 482 of the Code of Criminal Procedure to quash and set aside the complaint filed by the respondent No. 2-original accused herein, being Criminal Case No. 1033 of 2002, pending in the Court of learned Judicial Magistrate (First Class), Surat for the offence under Section 138 of the Negotiable Instruments Act, 1881 (Act No. 26 of 1881) (hereinafter shall be referred to as “the N.I. Act” for short).

A complaint came to be filed by the respondent No. 2-original complainant in the Court of learned Judicial Magistrate (First Class), Surat against the applicant-original accused for the offence under Section 138 of the N.I. Act, alleging inter alia that three cheques bearing Nos. 312569, 312568 and 312570, dated 29.6.2002 were issued by the applicant in favour of the complainant which came to be deposited on 4.7.2002. However the same came to be dishonoured with an endorsement of “Insufficient fund”. It was further alleged in the complaint that thereafter statutory notice as contemplated under Section 138 of the N.I. Act came to be issued upon the applicant-accused on 9.7.2002 and in spite of the service of the said notice; the amount under the cheques were not paid and therefore, it is alleged that the applicant-accused has committed an offence under Section 138 of N.I. Act. The said complaint came to be filed on 7.8.2002 which came to be registered as Criminal Case No. 1033 of 2002 and thereafter, learned Judicial Magistrate (First Class), Surat passed order on 7.8.2002 issuing process/summons upon the applicant for the offence under Section 138 of N.I. Act and hence the applicant has preferred present application for quashing and setting aside the aforesaid complaint filed under Section 482 of the Code of Criminal Procedure.

2. The learned advocate appearing on behalf of the applicant has made only one Submission that the cheques in question were returned by the bank on 4.7.2002 and thereafter all the cheques were again presented by the applicant in the bank on 5.8.2002 and therefore, the complainant, has waived his right to lodge complaint on the basis of notice dated 9.7.2002 and as the complainant has waived his right by representing the cheques again after issuance of the notice, the impugned complaint is not maintainable and therefore, it is requested to quash and set aside the impugned complaint.

3. The application is opposed by Mr. K.T. Dave, learned Addl. Public Prosecutor and it is submitted that the cheques in question were returned by the bank with an endorsement of “insufficient fund” by Bank advise dated 4.7.2002 and statutory notice as required under Section 138 of the N.I. Act was issued upon the applicant-accused on 9.7.2002 and the impugned complaint came to be filed on 7.8.2002 i.e. within the prescribed period of limitation as contemplated under Section 142 of the N.I. Act. It is, therefore, submitted that merely because the cheques were deposited again, when the impugned complaint has been filed within the prescribed period of limitation on the basis of the first notice, it cannot be said that there is a waiver or the impugned complaint is not maintainable.

4. He has relied upon the decision of the Hon’ble Supreme Court in the case of Prem Chand Vijay Kumar v. Yashpal Singh and another.1 It is also further submitted by him that even otherwise the present petition is required to be dismissed on the ground of delay and laches, as the impugned complaint is of 2002 and the summons came to be issued by the learned Judicial Magistrate (First Class), Surat in the year 2002 and the present application has been filed by the applicant in the year 2007 i.e. after a period of about five years, without any explanation with regard to delay. Under the circumstances, it is requested to dismiss the present application.

5. Heard the learned advocates appearing on behalf of the respective parties.

As stated above, the only submiss