The petitioner/accused allegedly issued a cheque dated 13-9-02 for an amount of Rs 1,25,000/- in favour of the respondent/complainant. Respondent/complainant presented the cheque before the Bank for encashment, but the same was dis-honoured by the Banker on 4-10-2002 on the ground that account stood already closed since 8-7-2000.

2. After the bouncing of the cheque respondent/complainant issued a notice through his counsel dated 26-10-2002 for calling upon the petitioner/accused to refund the amount of the cheque alongwith interest within 15 days from the date of the receipt of notice.

3. Notice was sent to the petitioner/accused under registered cover which after being delivered to the accused/petitioner on 02-11-02, the acknowledgement thereof was received by the respondent/complainant. When the petitioner/accused did not make the payment of the amount of the cheque to the respondent/complainant despite of his having received the notice, respondent/complainant filed the complaint against him under section 138 of the Negotiable Instruments Act before the learned Sub Judge, Judicial Magistrate Ist Class, Jammu on 11-11-2002.

4. The learned Magistrate by his order dated 18-1-2003 took the cognizance and issued process against the accused/petitioner.

5. Pursuant to the process issued the accused/petitioner appeared before the trial Court and filed an application for seeking dropping of the proceedings. Learned trial Court vide its order dated 9-12-2004 however, dismissed the application of the accused/petitioner.

6. Being aggrieved of the cognizance taken against the accused/petitioner by the trial Court, he has filed this petition for invoking section 561-A Cr.P.C for seeking quashment of the complaint as well as the order dated 9-12-2004 of the trial Court.

7. I have heard the learned counsel for the parties and perused the record of the case.

8. The primary contention of Mr. Johal, learned counsel for the petitioner is that the notice issued by the complainant/respondent was received by the accused/petitioner undisputably on 2-11-2002. Under the provisions of section 138 of the Negotiable Instruments Act, the cause of action for filing the complaint against the accused/petitioner would have accrued to the complainant/respondent, after the expiry of the period of 15 days. However, the complainant instead of waiting and giving 15 clear days to the accused/petitioner for making the payment of the cheque amount, filed the complaint under section 138 of the Negotiable Instruments Act on 11-11-2002. So according to him the complaint having been filed before the accrual of cause of action could not be legally entertained by the trial Court and therefore, the cognizance as well as the process issued on the said complaint is bad in the eyes of law, so the complaint as well as the order of taking cognizance deserves to be quashed.

9. Section 138 of the Negotiable Instrument Act reads as follows:--

"138. Dishonour of cheque for insufficiency etc of funds in the account.--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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

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)

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