The complainant must prove the receipt of notice by the accused to establish cause of action for filing a complaint under Section 138 of N.I. Act.

Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for quashing of the entire proceeding including the order taking cognizance dated 19.01.2007 passed by Judicial Magistrate, 1st Class, Hazaribag in Complaint Case no. 1342 of 2006, whereby and whereunder the court below took cognizance of offence under Section 138 of N.I. Act (in short “the Act”) and directed to issue summons.

2. Bereft of unnecessary details, the facts, which is relevant for the proper adjudication of the issue involved in this case, in short, is that at the instance of the complainant Sri Krishna Prasad, the aforesaid case was filed against the present petitioner under Section 138 of N.I. Act with the allegation that the accused-petitioner being a friend and also a relative requested the complaint for a lone of Rs.2,90,000/- and though the complainant was firstly hesitant in giving such a huge amount but considering the personal difficulty of the accused gave Rs.1,50,000/- on 20.10.2003 in cash and again paid Rs.1,40,000/- on 31.01.2004 on the assurance of the complainant that he will pay the entire amount as soon as possible. After sometime, the complainant requested the accused to refund the money and in pursuance to that, the accused issued a cheque of Rs. 2,90,000/- on 01.08.2006 with the assurance that he has sufficient amount in his account but when the cheque was presented in the Bank for encashment on 06.10.2006, it was dishonoured showing insufficient fund. The bank authorities returned the cheque with the said endorsement. Whereafter, the complainant informed the accused about the dishonour of the cheque but the accused refused to give reply on that. Thereafter, a legal notice was sent to the accused on 02.11.2006 with a request to pay Rs.2,90,000/- along with interest.

3. The court below after examining the complainant on solemn affirmation without examining any other witnesses took cognizance of the offence vide order impugned dated 19.01.2007. Aggrieved by that order, present case has been filed.

4. Assailing the order impugned as bad in law and perverse and also against the mandates of the Hon’ble Supreme Court, the learned counsel appearing for the petitioner seriously contended that the court below even without considering that no cause of action had arisen in this case took cognizance of the offence. It was also submitted that though the legal notice was sent to the accused-petitioner on 02.11.2006 but it is nowhere mentioned in the entire complaint petition that when the said notice was served upon or received by the petitioner or even refused and without making any such averment, the complainant filed the complaint on 02.11.2006. It was also submitted that even if it be considered that the said notice was issued on 02.11.2006, the cause of action to file complaint accrued only after service of legal notice or refusal to accept notice and only after expiry of 30 days from the date of issuance of legal notice as mandated in clause (b) of Section 142 of the Act, the cause of action arose after 15 days as envisaged under clause (c) of the proviso to Section 138 of the Act. It was also submitted that since nothing has been brought on record to show when the notice was either received or served on the petitioner, the entire proceeding under Section 138 of N.I. Act is vitiated because the cause of action will start within 15 days from the date of receipt of the said notice. In support of his submission, the learned counsel relied on the case D. Vinod Shivappa Vs. Nanda Belliappa; (2006) 6 SCC 456 and Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders & Agencies Ltd. and others; (2001) 6 SCC 463.

5. Contrary to the aforesaid submission, learned counsel Mr. Shikarwar representing the opposite party no.2 submitted that upon presentation of cheque and its dishonour by the Bank, intimation was given to the accused by the complainant and a cause of action had