1. The petitioner has invoked the jurisdiction of this Court in terms of the mandate of Section 561-A of Cr.P.C. seeking quashment of the proceedings and the order dated 22nd June, 2004 passed by the Ist Class Judicial Magistrate, Chadoora in the complaint titled Ghulam Hassan Bhat Vs. Fayaz Ahmad Kishtwari under Section 138 of Negotiable Instruments Act.

2. It appears that respondent, Ghulam Hassan Bhat, filed a complaint under Sections 138 of the Negotiable Instruments Act before the First Class Judicial Magistrate, Chadoora against the accused, petitioner herein, on 18th March, 2003. The Magistrate took the cognizance and issued the process against the accused for the commission of offence punishable under Section 138 of the Negotiable Instruments Act.

3. It appears that the petitioner/accused appeared before the said court and raised a plea that complaint is not maintainable. The learned Magistrate, after hearing the learned counsel for the complainant and the accused, held that the complaint has been presented after the prescribed period of limitation but in terms of mandate of proviso to Section 142(b) of Negotiable Instrument Act the Court can condone the delay and accordingly, held that complaint is maintainable. This petition is directed against the said order i.e. order dated 22nd June, 2004 passed by First Class Judicial Magistrate, Chadoora in the said complaint which shall be hereinafter referred to as the impugned order. The petitioner has also prayed that the entire proceedings be quashed.

4. Heard. Mr. Tasaduq, learned counsel for the petitioner, argued that in terms of the averments contained in the complaint, it is alleged that accused has issued a cheque bearing No.0069842 dated 20th November, 2001 for an amount of Rs. one lakh and the cheque was dishonoured due to insufficiency of funds. It is also alleged that the complainant has issued a demand notice dated 10th January, 2003. The complainant was under legal obligation to issue notice of demand within 30 days from the date of receiving the information regarding the return of the cheque as unpaid. The complainant has not issued the notice within time. Thus, the complaint is not maintainable in terms of Section 138 read with Section 142 of Negotiable Instruments Act.

5. Mr. Tasaduq, learned counsel for the petitioner, further argued that proviso to sub-section (b) to Section 142 of the Negotiable Instruments Act can be pressed into service when cause of action accrues. If after accruing of cause action, the complainant fails to file the complaint within the time frame then he can pray for condonation of delay. The proviso to Section 142(b) nowhere mandates that when the complainant receives information about dishonour of the cheque then the 30 days period provided for making a demand notice can be extended and delay in making the said notice can be condoned.

6. Mr. Thakur, learned counsel for the respondent, argued that the delay can be condoned.

7. Considered.

The core question involved in this petition is whether the delay which has crept in serving demand notice in terms of sub-section (b) to Section 138 of the Negotiable Instruments Act can be condoned?

8. It is useful to reproduce proviso to Section 138 of Negotiable Instrument Act, herein:-

"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 validity, whichever is earlier;

(b) 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 information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fiftee

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