The proviso to Section 138 of the Negotiable Instrument Act aims to avoid unnecessary prosecution of an honest drawer and provides an opportunity to make amends before facing criminal liability.

1. Heard learned counsel for the petitioner and learned A.P.P. representing State.

2. Petitioner has sought special leave to appeal against the judgment of acquittal passed in Complaint Case No. 686 of 2013/T.R. No. 339 of 2017 on 25.01.2017 by the learned Court of Judicial Magistrate 1st Class, Ranchi where under the sole accused/opposite party No. 2 has been acquitted of the charge under Section 138 of the Negotiable Instrument Act primarily on the ground that complaint was prematurely filed on 21.03.2013 i.e. on the sixteenth day of the issuance of the registered legal notice on 05.03.2013.

3. There is a delay of 352 days in filing the instant Cr. M.P. which is sought to be condoned through I.A. No. 2660 of 2018. Petitioner has tried to make out an explanation that he is 70 years old retired person suffering from some ailment and after coming to know of the impugned judgment dated 25.01.2017, he obtained the certified copy of the impugned order on 01.03.2017, which consumed sometime. He somehow arranged fund to engage a lawyer and thereafter filed the case with nomenclature S.L.A. which was registered as S.L.A. No. 02 of 2017. The stamp report pointed out about the incorrect nomenclature and thereafter the same was converted into Cr. M.P. vide order dated 15.02.2018. Thereafter another defect was pointed out by the stamp report indicating that the petition is time barred by 352 days. The delay is therefore not intentional but due to inadvertence caused by wrong nomenclature. If the date of filing of the petition on 21.03.2017 is reckoned, there is hardly any delay in filing the petition from the order dated 25.01.2017.

4. Having considered the explanation in the instant I.A. we find that the delay in fact has occasioned on account of wrong nomenclature and petition initially was filed 21.03.2017 within less than 60 days of the passing of the impugned judgment. Rest of the delay is attributable to the correction of the nomenclature after the defect was pointed out by the stamp report. We therefore condone the delay of 352 days in filing the instant petition. I.A No. 2660 of 2018 stands disposed.

5. We have considered the submission of learned counsel for the petitioner and learned A.P.P. on the merits of the prayer seeking special leave to appeal.

6. The allegations made out through the complaint petition flied on 21.03.2013 show that an amount of Rs. 4,50,000/- was paid on request to the accused/ opposite party No. 2 herein with a promise to return it within 6 months. However, the accused stopped visiting the residence of the complainant and did not turn up for considerable long time, which created doubt about his bona-fide. Finally the complainant exercised some pressure upon the accused to repay the amount, when only a cheque bearing No. 471039 dated 12.02.2013 of Rs. 4,50,000/- drawn on State Bank of India, Doranda Branch, Ranchi was issued by the accused. The cheque was deposited for encashment but was dishonoured with the endorsement on the return memo dated 14.02.2013 fund insufficient. Thereafter the complainant sent a pleader's notice to the accused on 05.03.2013 by registered post but the accused did not make payment to the complainant. Then the complainant filed the instant case on 21.03.2017 i.e. on the sixteenth day of the issuance of the registered legal notice.

7. The complainant examined himself as CW-1 and exhibited Ext-1 cheque number 471039 dated 12.02.2013 for Rs. 4,50,000/- of State Bank of India, Doranda Branch, Ranchi, Ext.2 Cheque return memo dated 14.02.2013 of the State Bank of India, Doranda Branch, Ranchi, Ext.3 legal notice dated 05.03.2013 and Ext.4 postal receipt dated 05.03.2013. Learned trial Court upon conclusion of the trial came to the opinion that the petition was premature as mandatory requirement under Section 138 (c) of the N.I. Act had not been complied with. The complaint had to be filed as per Section 142(b) of the N.I. Act within a month of the date from which the cause of action