The central legal point established in the judgment is the requirement to prove five essential elements before taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881, and the limitation on filing a complaint within one month of the cause of action arising, as specified in Section 142.

Heard learned counsel for the petitioner and learned counsel for the State.

2. This application under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing of the order dated 08.03.2017 passed by the Learned Sessions Judge, Begusarai, in Criminal Revision No.56 of 2017 whereby and where under the order taking cognizance dated 14.07.2016 passed by the learned Chief Judicial Magistrate, Begusarai in Complaint Case No. 1056(C) of 2016 has been affirmed by which the petitioner was summoned to face trial for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “N.I. Act”).

3. It is submitted by the learned Advocate for the petitioner that the order impugned passed by the revisional court affirming the order passed by the learned Chief Judicial Magistrate by which the petitioner has been summoned to face trial under Section 138 of the N.I. Act is bad in law.

4. The submission is that for dishonour of two cheques in the first instance legal notice was issued to the petitioner on 31.12.2015. As the petitioner failed to reply, the reminder notice was issued on 26.02.2016 by the complainant to which the petitioner replied on 02.03.2016 denying his liability where after the complaint has been filed on 11.05.2016. It is submitted that while summoning the petitioner vide order dated 14.07.2016 the learned Chief Judicial Magistrate, Begusarai, erroneously condoned the delay in filing the complaint.

5. It is submitted that since no complaint was filed within one month from the date of issuance of the first notice, the learned Magistrate could not have taken cognizance of the offence and summoned the petitioner, as under Section 138 read with Section 142 of the N.I. Act, unless a complaint is filed within one month of the date on which cause of action arose, there would be bar in taking cognizance of an offence. In support of his submission, he has placed reliance on the decision of the Supreme Court in Krishana Exports and Others vs. Raju Das [(2004) 13 SCC 498].

6. Per contra, learned Advocate appearing for the complainant submitted that since the Post Office failed to supply any report regarding delivery of the first notice dated 31.12.2015, the second notice was issued on 26.02.2016. According to him, if the first notice itself could not be served upon the petitioner there would be no bar in sending the second notice. He submitted that, whatever was the limitation in filing the complaint has already been condoned by the learned Chief Judicial Magistrate taking into consideration the request made by the complainant that during the intervening period he had fallen ill. His contention is that there is no illegality in the order passed by the learned Chief Judicial Magistrate or by the revisional court.

7. I have heard learned Counsel for the parties and perused the record.

8. The relevant Sections 138 and 142 of the N.I. Act read as under:-

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its