ORDER :

Shree Chandrashekhar, J.

The complainant is aggrieved of the judgment dated 28.07.2016 passed in Criminal Appeal No.206 of 2013 by which the complaint case instituted by him under section 138 of the Negotiable Instruments Act has been dismissed.

2. Complaint Case No. C/1 2069 of 2010 was filed on 14.07.2010 on the allegation that the cheque bearing no.227841 dated 15.06.2010 drawn on ICICI Bank, Bistupur Branch, Jamshedpur in favour of complainant was returned with the cheque return memo dated 15.06.2010 with remark “stop payment”. The complainant has stated that he gave friendly loan of Rs.50000/- to O.P. No.2, his neighbour, for construction of his old house and for the payment of the said amount O.P. No.2 issued a cheque dated 15.06.2010 drawn in his favour for Rs.50000/-. The complainant sent legal notice dated 19.06.2010 by registered-post to the accused demanding payment of the cheque amount. However, O.P. No.2 denied his liability through reply dated 07.07.2010 to the aforesaid legal notice issued by the complainant and, therefore, the complaint case was instituted on 14.07.2010. The complainant has examined himself as a witness during the trial and tendered cheque bearing no.227841, cheque return memo, demand notice, postal receipt and a copy of reply by O.P. No.2 in evidence. In his defence O.P. No.2 has examined 3 witnesses -he has examined himself as DW3. The learned trial Magistrate has found O.P. No.2 guilty under section 138 of the Negotiable Instruments Act and, accordingly, convicted and sentenced him to undergo SI for one year, with fine amount of Rs.80000/-. Before the Appellate Court, the plea raised by O.P. No.2 that the complaint itself was premature and, therefore, his conviction in Complaint Case No. C/1 2069 of 2010 is bad in law was accepted by the learned Appellate Court.

3. There is no dispute on facts that no evidence was led by the complainant to establish when the legal notice dated 19.06.2010 issued by him was served upon O.P. No.2. The learned Appellate Court has observed that no one from the postal department, nor any witness has been examined by the complainant in this regard.

4. Mr. Sheo Kumar Singh, the learned counsel for the petitioner submits that once O.P. No.2 denied his liability through reply dated 07.07.2010 the complainant was not required to wait for 15 days period as required under section 138 of the Negotiable Instruments Act to afford an opportunity to the accused to make payment of the cheque amount and, therefore, the complaint filed after receipt of reply dated 07.07.2010 sent by O.P. No.2 was not premature - the complaint was filed on 14.07.2010.

5. In “K. Bhaskaran v. Sankaran Vaidhyan Balan” (1999) 7 SCC 510 the Hon'ble Supreme Court has held as under :

“17.….. The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted below:

(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 fifteen 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 fifteen days of the receipt of the said notice.

18. On the part of the payee he has to make a demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such “giving”, the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days “of the receipt” of the said notice. It is, therefore, clear that “giving not