The main legal point established in the judgment is that the cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act arises only after the expiry of 15 days from the receipt of notice by the drawer of the cheque, as stipulated in the provisos (b) and (c) of the Act.

The complainant in C.C. No. 167/90 on the file of the Judicial First Class Magistrate's Court, Attingal is the appellant.

2. The appellant filed the complaint against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. It is the case of the appellant that the respondent issued a cheque for Rs. 35,000/- in repayment of the loan on 25-1-1990 and when the cheque was presented for encashment it was dishonoured. The registered notice sent by the appellant intimating about the dishonour of the cheque and calling upon the respondent to pay the amount is refused by the respondent. Therefore the respondent has committed the offence punishable under Section 138 of the Negotiable Instruments Act.

3. The lower Court after trial by judgment dated 2-12-1991 found that the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him.

4. Though the lower Court found that the respondent issued Ext. P1 cheque to the appellant for the discharge of the debt due from him and the cheque was dishonoured for insufficiency of funds and the registered notice issued by the appellant is refused to accept by the respondent, the Court held that the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act since the appellant failed to prove that the complaint was filed before the lower Court after the expiry of 15 days from the receipt of notice as contemplated in Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act and therefore the complaint is filed before the cause of action had arisen under Clause (c) of the proviso to Section 138 of the Act.

5. The facts that Ext. P1 cheque was issued by the respondent to the appellant for Rs. 35,000/- in discharge of the debt due from the respondent to the appellant and the cheque was dishonoured for want of sufficiency of funds when it was presented for encashment are proved and those facts are not disputed. Ext. P2 dishonour slip issued by the drawer's bank shows that the cheque was bounced on 2-5-1990. According to the appellant he knew about the dishonour of the cheque only on 8-5-1990. The appellant has issued Ext. P4 notice on 14-5-1990. Therefore, the evidence on record satisfied the requirement under proviso (b) to Section 138 of the Act that the notice in writing should be given within 15 days of the receipt of information regarding the dishonour of the cheque. It is the case of the appellant that the respondent refused to accept the registered notice and the original notice with the endorsement 'refused' by the postal authorities is produced and marked as Ext. P4. The endorsement 'refused' made by the postal authorities in Ext. P4 shows that it was refused by the respondent on 26-5-1990. The complaint is filed by the appellant before the lower Court on 2-6-1990 which was adjourned by the lower Court to 6-6-1990 for examination of the complainant under Section 200 of Cr.P.C. which was again adjourned to 16-6-1990 for examination of the complainant under Section 200 of Cr.P.C. as applied by the complainant and on 16-6-1990 the sworn statement of the appellant was recorded by the lower Court and the case was registered as C.C. 167/90 and ordered to issue summons to the respondent.

6. The respondent contended before the lower Court that since the complaint is filed by the appellant before the expiry of 15 days of the receipt of notice by the respondent as provided under proviso (c) to Section 138 of the Negotiable Instruments Act, the appellant had no cause of action to prosecute the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. The lower Court found that though the complaint was filed on 2-6-1990 cognizance of the offence was taken by the lower Court on 6-6-1990 when it was posted for examination of the appellant under Section 200 of the Cr.P.C. and therefore, the complaint filed and c