IMPORTANT POINT
Lawful cognizance of offence cures any lacuna in filing of complaint.

Manoj Misra, J.—Heard learned counsel for the petitioner and learned A.G.A for the State.

2. By this writ petition, the petitioner has challenged the order dated 25.8.2012 passed by the Additional District and Sessions Judge, Temporary, (Ex Cadre-1), Court No.14, Gorakhpur in Criminal Revision No. 281 of 2011 as also the summoning order dated 10.4.2009 passed by the Judicial Magistrate-I, Gorakhpur in Complaint Case No.1295 of 2008 whereby the revisionist has been summoned under Section 138 of the N.I. Act.

3. The facts, as they appear on record, are that the opposite party No.2 filed a complaint on 17.9.2008 against the petitioner under Section 138 of the N.I. Act. In the complaint it was alleged that a cheque dated 19.7.2008 for Rs.12,03,926.00 on Punjab National Bank, Bank Road Branch, Gorakhpur issued in favour of the complainant by the petitioner in lieu of supplies made by the complainant against various invoices detailed in complaint, returned unpaid. It was alleged that the cheque was deposited for collection with Syndicate Bank, Gorakhpur and it was returned by the Punjab National Bank, Bank Road, Gorakhpur on 21.7.2008 with the remark “Exceed Arrangement”. The information of its dishonour was received from the Banker on 23.7.2008. Consequently, a notice for payment of the cheque amount was dispatched on 20.8.2008 to the accused under registered post but even after expiry of the notice period no payment was made as a result, the complaint was filed.

4. It appears from the order sheet produced by the learned counsel for the petitioner during the course of arguments that the complaint was presented on 17.9.2008 on which date the Presiding Officer was not present. Accordingly, 18.10.2008 was fixed. Again, on 18.10.2008, the Presiding Officer was absent. Consequently, 4.12.2008 was fixed. On 4.12.2008 it appears that again on the absence of the Presiding Officer, 19.12.2008 was fixed. On 19.12.2008 it appears that the Presiding Officer passed an order directing for recording of statement under section 200 Cr.P.C. After recording the statement under Section 200 Cr.P.C, the learned Magistrate summoned the petitioner under Section 138 of the N.I. Act.

5. Challenging the summoning order the petitioner preferred a revision which was dismissed.

6. Assailing the orders passed by the courts below, the learned counsel for the petitioner submitted that in the complaint there is no averment with regard to the service of notice of demand, therefore, the complaint was not legally maintainable. In the alternative, it was submitted that admittedly the notice of demand was dispatched on 20.8.2008 whereas the complaint was filed on 17.9.2008 even before the expiry of one month from the date of dispatch of notice, therefore, even if it is assumed that the notice of demand, sent under registered post to the addressee, had been served on the addressee, in due course of time, the period for such service should be taken as 30 days from the date of dispatch as has been laid in the case of Subodh S. Solakar v Jayprakash M. Shah and another1 therefore, the complaint was premature and no cognizance could have been taken on such a complaint.

7. Per contra, the learned A.G.A submitted that from the order sheet it appears that the court took cognizance on 19.12.2008 as that was the date when the court first applied its mind on the complaint allegations and proceeded to fix a date for recording the statement under Section 200 Cr.P.C. It has been stated that since the date i.e 19.12.2008 is about two months after expiry of period of one month from the date of dispatch of the notice, it cannot be said that the complaint was premature. Further, the learned A.G.A pointed out that in view of the decision of the apex court in the case of C.C Alavi Haji v. Palapetty Mohd. & another2, what is required to be stated in the complaint is the manner and the mode in which the notice of demand is issued. And since the notice of demand was issued under registe