The main legal point established in the judgment is the interpretation of the power of the Magistrate to return the complaint and the determination of the date to be taken into account for filing the complaint under Section 138 of the Negotiable Instruments Act.

V.S. SIRPURKAR. J.

This judgment shall dispose of the two Criminal Original petitions they being Crl. O.P. Nos. 10902 of 1998 and 6369 of 1999. A reference has been made in Crl.O. No. 10902 of 1998 by the learned Judge (M. Karpagavinayagam, J.) in the following terms :

"In order to decide as to whether the complaint for the offence under Section 138 of the Negotiable Instruments Act filed be fore the court is within time, which is the date to be taken into account ? Is it the date of presentation made before the Court or the date on which the Court took cognizance ?"

2. The said reference was necessitated on account there being a conflict between two decisions of the court, both by the learned single Judges of this court. In D. Ramamoorthy v. K. J. Duraisamy, reported in (1995) 1 Mad LW (Cri) 300, Janarthanam, J. had held that once the complaint for an offence under Section 138 of the Negotiable Instruments Act was presented within limitation and that presentation was noted by the court, even if the complaint is returned back to the complainant by the Court and represented after the period of limitation still the complaint would be held to have been presented in time. Admittedly, a contrary view has been taken in Crl.R. C. No. 933 of 1993 (G. L. Srinivasan v. M/s. Dhanalakshmi Industries, rep by its Managing Partner Maruthachala Chettiar) wherein Raman, J. has held that if such complaint, which is filed in time, but returned to the party for representation, is represented after the period of limitation, then the Court is precluded from taking cognizance on the ground of limitation provided under Sec. 142 of the Negotiable Instruments Act.

3. It is on this conflict that the two matters have come before us. Before we advert to the law involved in the matter, it would be better to note some salient factual features. In Crl. O.P. No. 10902 of 1997, the complaint was filed on 29-11-1995, which was admittedly within limitation of one month is provided under Section 138 of the Negotiable Instruments Act since the notice to the accused to make the payment of the amount covered by the cheque was deemed to have been served on 30-10-1995. On that day, the Magistrate, before whom the matter was presented, made an endorsement, in his hands, to the effect that the age of the accused was not mentioned and the name of the drawee of the cheque was different in the complaint. It was on that account that the complaint came to be returned. This complaint was then represented on 3-5-1995, after curing the defects pointed out by the Magistrate. It is thereafter that the Magistrate took cognizance and issued summons to the accused on account of which, the accused has filed the present Criminal Original Petition No. 10902 of 1998 for quashing the complaint on the ground that it was barred by limitation. Similar are the facts in Crl. O.P. No. 6369 of 1999 also. The complaint was presented in time on 13-11-1998. It was fixed for consideration on 15-12-1998 by passing a specific order - "Call on 15-12-1998". It was found that the fathers' names of the complainant and the accused as also their ages were not mentioned and that bears the endorsement of 15-12-1998 made by the Magistrate. The complaint thereafter was returned to the complainant, which was re-presented on 13-1-1999. on which date the Magistrate was on leave. It was, therefore, again re-presented on 23-2-1999, but on that day there was no power of attorney and, therefore, ultimately came to be re-presented later on 4-3-1999. Thereafter it seems that the complaint was registered as C.C. No. 1323 on 1999 by the IX Metropolitan Magistrate, Saidapet and he issused summons for quashing of which, the present Criminal Original petition No. 6369 of 1999 was filed, the side Cri O.P. No. 6369 of 1999 was ordered to be taged with the Crl. O.P. No. 10902 of 1998 and that is how both the petitions have come before us.

4. The learned counsel for the accused in both the cases Mr. Packiaraj, in his