The starting point of limitation for filing a complaint under Section 138 of the Negotiable Instruments Act is the date of receipt of the demand notice by the drawer, not the date of the complainant's knowledge of the receipt of the notice.

Kanchan Chakraborty, J.

1. THE challenge in the revision is to the order dated passed by the Ld. Additional District and Sessions Judge ,FTC No-VIII Bihcar Bawan, Calcutta ,in C.R. 27 of 2009 whereby the Judgment and order of conviction of the petitioner under section 138 of the Negotiable Instruments Act in C-146 of 2000 was set aside. This findings has been challenged , mainly , on twofold ground-(a) that the :Ld. 1 st. revisional court erred in coming to a conclusion that that examination of the Power of attorney holder alone is not enough and (b ) that the Ld. Court erred in holding that the cognizance of offence taken by the Magistrate on a complaint which was barred by limitation.

2. A short reference to the factual aspect giving rise to the grievance to the petitioner is set out below for better appreciation of the entire matter.

The petitioner A.K.Maheswary lodged one petition of complaint through his Power of attorney holder Ram Chandra Jaju against the O.P.s Modern Engineering Works and Rajranglal Sarda under section 138 of N.I.act alleging therein that the respondent being the proprietor of Modern Engineering Works had taken loan from him and in discharge of such liability, he had drawn a cheque of Rs. 1,00,000 in the name of the complainant. The cheque was dishonored owing to -insufficiency of fund-. The complainant issued a demand notice by registered post on 09.9.1999. The complainant did not receive any postal report regarding service of the notice on the respondent till 04.11.1999. Therefore, he took up the matter with the postal authorities and on17.01.2000 was informed by the G.P.O. that the demand notice was served on the respondent on15.09.1999.Being so informed, he lodged the case within the period of one month. The Ld. Trial court found all the essential ingredients of offence under section 138 N.I.act were established. Therefore, conviction of the respondent was recorded. The respondent challenged that decision in a revision and the Ist revisional court was pleased to set aside the decision of the Ld. Trial court on the grounds ,(a)that the prosecution was barred by law and ( b ) that the complainant ought to have been examined by the court. The complainant being dissatisfied with that order passed by the revisional court has come up with this application challenging the legality , validity and propriety of the order on the grounds already stated.

3. IN exercising its revisional jurisdiction , this court is not supposed to enter into merit of the case and reappreciate evidence on record. But, when legal questions have been raised, this court is dutybound to answer such questions in order to right the wrong. Mr. Roy , Ld. Counsel for the petitioner/ complainant contended that in view of cl.(b) of section 142 of the act, a complaint is to be lodged by the payee or holder of the cheque within one month from the date of arising of cause of action. IN view of cl. (c) of the proviso to section 138 of the Act, cause of action only arises when the drawer fails to make payment on expiry of 15 days from the date of receiving of the demand notice . The fact of receiving of the demand notice , Mr. Roy contended , being one of the essential ingredients for constituting the offence under section 138 of the act, the payee must know the date of receipt of the demand notice otherwise it will not be possible for him to lodge the prosecution within the statutory period of time. According to Mr. Roy , starting point of limitation would be the date when the payee comes to know the date of receipt of the notice.Mr. Roy ,in support of his contention , referred two the decisions of this court in (1)Bhabani Shankar Agarwal Vs. State of West Bengal [ 2006]2 C Cr LR (Cal) 355 and M/s. Grasim INdustries Ltd. Vs. The State of West Bengal [2009]2 CLJ(CAL) 208.

4. MR. Sanyal, Learned Counsel of the opposite party contended that the cause of action for offence under Section 138 of the N.I. Act arises only once, i.e., on failure