ORDER :

M.D. SHAH, J.

1. The present respondent No.2 lodged complaint against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act ('NI Act' for short) in which process was issued by the trial court after verification of the complaint and after recording the statement of the complainant which was numbered as Criminal Case No.1011 of 2008. It was specifically alleged in the complaint that the complaint was filed within the period of limitation prescribed under the provisions of Negotiable Instruments Act.

2. Rule. Learned APP, Mr. L.R. Pujari for the respondent No.1 and learned advocate, Mr.H.D.Dave for the respondent No.2 waive service of rule.

3. Heard learned advocate Mr. Majmudar for the petitioner, learned APP, Mr. L.R. Pujari for the respondent No.1 and learned advocate, Mr.H.D.Dave for the respondent No.2.

4. It is submitted by Mr. Majmudar that complaint was not filed within the period of limitation prescribed under the provisions of Negotiable Instruments Act and was time barred. It is further stated that nowhere it is mentioned in the complaint as to for what reason, delay has been occurred in filing the complaint. On the contrary, it was mentioned that the complaint was lodged in time.

5. It is submitted by Mr.Dave for the respondent No.2-complainant that once the trial court has issued process, then petitioner can raise all contentions before the trial court during trial and, therefore, petition requires to be dismissed. It is further submitted that though the complaint was filed in the year 2008, the petition is preferred in 2010 and hence also, this petition is required to be dismissed.

6. This Court has gone through the complaint. It appears from the same that the cheques were deposited on 29-5-2008 by the respondent No.2 which were returned with the endorsement "stop payment" on 21-6-2008. Thereafter, notice was issued to the petitioner on 22-6-2008 which was received on 24-6-2008. Thus, complaint was required to be filed on 9-8-2008 i.e. within fifteen days of receipt of notice by the petitioner but it was filed on 18-8-2008 and prima facie complaint was time barred. As discussed above, the complainant has not narrated any reasons for lodging the complaint late nor submitted any application for condoning the delay occurred in lodging the complaint.

7. Reliance is placed on the case of Umiya Pipe Private Limited Vs. State of Gujarat and Another reported in 2008(3) G.L.H. Page 628 wherein it has been observed in paragraphs 13, 14 and 16 as under:

"13. On fair and conjoint reading of Section 142 read with Section 138 of the Negotiable Instruments Act, 1881, the starting point of limitation as contemplated under Sub Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 would be immediately after completion of fifteen days of receipt of the notice served under Section 138 of the Negotiable Instruments Act, 1881. Considering Section 138 of the Negotiable Instruments Act, 1881 a person is deemed to have committed an offence under Section 138 of the Negotiable Instruments Act, 1881 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, provided that;

(i)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 validity, whichever is earlier;

(ii)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of