P. Sam Koshy, J.

1. The present Cr.M.P. has been preferred assailing the order dated 28.09.2016 passed by the Chief Judicial Magistrate, Bastar in Criminal Case No. 1915/2011 whereby the complaint preferred by the petitioner under Section 138 of the Negotiable Instrument Act (for short 'the N.I. Act') got dismissed on account of it being filed beyond the period of limitation.

2. The relevant fact for adjudication of the present case is that the Respondent accused in the present Petition had issued a cheque in favour of the present Petitioner for an amount of Rs. 5,00,000/- vide cheque No. 324398 dated 11.01.2011 drawn on the "Union Bank of India".

3. The Petitioner presented the said cheque for realization in his bank on 03.03.2011. The present Petitioner received intimation on 04.03.2011 that the cheque by the Respondent accused has got dishonored on account of insufficient fund on 03.03.2011. On the very next day legal notice was issued to the Respondent accused and since there was no response from the Respondent accused to the said notice the cheque was presented for realization again in the bank on 28.05.2011 wherein again the cheque got dishonoured on account of insufficient fund. Thereafter, again notice was issued on 01.06.2011 and since there was no positive response from the Respondent accused a complaint under Section 138 of the N.I. Act was filed before the Court on 30.06.2011. The Court below initially registered the case as Criminal Case No. 1915/2011 and finally vide its order dated 28.09.2016 rejected the case on the ground that the complaint has been filed beyond the prescribed period of limitation.

4. It is this judgment which is under challenge in the present Cr.M.P. and the Petitioner complainant seeks leave to appeal to challenge the impugned judgment.

5. Learned Counsel for the Petitioner submits that so far as the service of notice dated 04.03.2011 is concerned there is no proof whatsoever whether the notice have been served upon the accused or not. Therefore it has to be presumed that the notice which has been issued on 01.06.2011 to be the service which has been effected upon the Respondent accused and therefore from the date of issuance of the notice dated 01.06.2011 the complaint case has been filed within the prescribed period of limitation under the N.I. Act. Therefore, the Court below was not justified in rejecting the complaint case holding to be barred by limitation.

6. Having considered the rival contention put forth by the Counsel for the Petitioner and on perusal of the record what clearly reflects is the fact that admittedly the cheque for the first time was presented for realization on 03.03.2011 but it was intimated by the Bank that the cheque is dishonoured on account of insufficient fund. On the next day on 04.03.2011 a legal notice was issued to the Respondent accused against the dishonouring of cheque.

7. At this juncture it would be relevant to refer paragraph No. 7 of the complaint filed by the present Petitioner before the Court below wherein in a very categorical term it is mentioned as under :-

"7- ;g fd ifjoknh }kjk vkjksih dks fnukad 04-03-2011 dks uksfVl Hkh izsf"kr fd;k Fkk ijUrq vkjksih }kjk fdlh rjg dk uksfVl dk tokc ugha fn;k x;k vkSj u gh ifjoknh ls O;fDr'k% feydj Hkh dksbZ tkudkjh gh nh xbZA "

8. Thereafter, as per the pleading of the Petitioner complainant himself he had again put the cheque for clearance on 28.05.2011 which also got dishonoured on account of the insufficient fund and intimation of which was received on 28.05.2011. Again on the intimation he had for the second time issued a legal notice on 01.06.2011 which also was not replied by the Respondent as mentioned in the complaint itself in paragraph 8 of the complaint under Section 138 of the N.I. Act. Which for ready reference is reproduced herein :-

"8- ;g fd ifjoknh }kjk iqu% fnukaad 28-05-2011 dks iqu% psd ;wfu;u cSad vkWQ bf.M;k 'kk[kk txnyiqj esa psd esa vafdr jkf'k dk vkgj.k gsrq izLrqr fd;s ijUrq iqu%