ORDER :

Anubha Rawat Choudhary, J.

Heard Mr. Amit Kumar, the learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Rakesh Kumar Sinha, the learned counsel appearing on behalf of the Opposite Party No.2.

3. The present criminal revision petition is directed against the Judgment dated 16.04.2012 passed by the learned Principal Sessions Judge, East Singhbhum, Jamshedpur in Criminal Appeal No. 246 of 2009 whereby and whereunder the learned appellate court confirmed the Judgment of conviction and affirmed the order of sentence of the petitioner under Section 138 of the Negotiable Instruments Act, 1881 passed by the learned trial court and dismissed the appeal.

4. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated 11.09.2009 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 605 of 2007/T. R. No. 401/2009 whereby and whereunder the petitioner was held guilty and convicted under Section 138 of the Negotiable Instruments Act, 1881 and was sentenced to undergo Rigorous Imprisonment for one year and was directed to pay a sum of Rs. 1,10,000/- to the Complainant towards compensation in terms of Section 357(3) of the Cr.P.C.. It was further directed that period of custody already undergone as an under-trial prisoner shall be set off in terms of Section 428 of the Cr. P. C.

Arguments on behalf of the petitioner

5. The learned counsel appearing on behalf of the petitioner submitted that two cheques, both dated 19.03.2007, are involved in this case, one for an amount of Rs. 60,000/- and another for an amount of Rs. 50,000/-, total being Rs. 1,10,000/. While giving the relevant dates, he submitted that both the cheques were presented and dishonored on the same date for insufficient fund which was communicated vide two separate memos dated 21.03.2007. The legal notice dated 26.03.2007 was sent through registered post on 26.03.2007, but it was returned back to the sender with an endorsement of refusal of the postal man dated 10.04.2007. He further submitted that the Opposite Party No.2 instead of waiting for expiry of 15 days from 10.04.2007 filed the Complaint case on 17.04.2007.

6. The learned counsel for the petitioner further submitted that the point for consideration before this Court is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired. He relied upon the Judgment passed by the Hon’ble Supreme Court in the case of Yogendra Pratap Singh – vs- Savitri Pandey and Another reported in (2014) 10 SCC 713, paragraphs - 36 and 37, and submitted that the learned trial court while appreciating the point of pre-mature Complaint recorded that on the date of taking cognizance of the offence, the period of 15 days had expired and therefore, held that the Complaint was not pre-matured. He submitted that the Hon’ble Supreme Court has specifically decided this point of law in para- 36 and 37. He further submitted that the date of taking cognizance is immaterial and what is material is the date of filing the Complaint which was admittedly filed prior to expiry of the prescribed period when calculated from the date of refusal i.e. 10.04.2007.

7. The learned counsel for the petitioner further submitted that the learned appellate court while considering the point of pre-mature Complaint has recorded that the envelope of notice shows that the postal man went to the house of the petitioner on 02.04.2007, 03.04.2007 and 09.04.2007 and ultimately, on 10.04.2007, notice was returned back to the Complainant mentioning ‘refusal’ and it appears that refusal for service of notice was taken by the postal man on 02.04.2007 itself and ultimately, it was returned on 10.04.2007 with endorsement of ‘refusal’ and his signature on 10.04.2007. On this basis, it was held by the appellate court that 10.04.2007 is not the date of refusal by