After sending first notice complainant ought to have initiated action u/s 138 of the Act.

The learned counsel for the petitioner submitted that the petitioner has come forward with this petition seeking for the relief of quashing the proceedings initiated against the petitioner for the alleged offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act").

2. The learned counsel for the petitioner submitted that the case relating to the dishonour of three cheques, viz., (1) Cheque No.0469484 dated 27.07.2004 for a sum of Rs.5,00,000/-, (2) Cheque No.0469485 dated 10.08.2004 for a sum of Rs.7,00,000/-and (3) Cheque No.0469486 dated 25.08.2004 for a sum of Rs.7,50,000/-. It is submitted by the learned counsel for the petitioner that the allegation of the complainant is that all the three cheques were presented before their bankers and the cheques were dishonoured on the ground of "funds insufficient". It is contended by the learned counsel for the petitioner that the complainant after receiving the bank memo dated 03.09.2004 sent a statutory notice dated 08.09.2004 calling upon the petitioner to pay the amount towards the dishonoured cheques. The learned counsel for the petitioner contended that after sending the notice, the respondent/complainant has not taken any steps to file the complaint for the alleged offence under Section 138 of the Act. It is submitted by the learned counsel for the petitioner that with a view to overcome the infirmity and lacuna and in order to save the period of limitation as contemplated under Section 138 of the Act, the respondent/complainant once again presented the above said three cheques on 20.011.2004 in their bankers and all the three cheques were said to have dishonoured once again and thereafter, issued a second statutory notice dated 211. 2004 under Section 138 of the Act calling upon the petitioner to pay the amount towards the dishonoured cheques.

3. It is submitted by the learned counsel for the petitioner that the learned counsel for the petitioner that in view of filing the complaint on the basis of the second notice, the complaint itself is barred by limitation. The learned counsel for the petitioner also placed reliance on the following decisions of the Honble Supreme Court :

i. SADANANDAN BHADRAN V. MADHAVAN SUNIL KUMAR reported in AIR 1998 SC 3043 ;

ii. PREM CHAND VIJAY KUMAR V. YASHPAL SINGH AND ANOTHER reported in (2005) 4 SCC 417 ;

iii. DALMIA CEMENT (BHARAT) LTD. V. GALAXY TRADERS & AGENCIES LTD. reported in (2001) 6 SCC 463

4. Per contra, learned counsel for the respondent/complainant contended that there is no infirmity or illegality in the complaint preferred by the respondent/complainant. It is submitted by the learned counsel for the respondent that the first notice said to have been sent by the respondent/complainant dated 08.09.2004 is only by way of telegram and as such the first notice cannot be construed to be a statutory notice as contemplated under Section 138 of the Act. Therefore, it is submitted by the learned counsel for the respondent that only the present notice dated 211. 2004 alone should be construed and considered as statutory notice and as such the complaint is filed well within the time and the same is not barred by limitation.

5. I have carefully considered the rival contentions put forward by either side and also perused the complaint copy in this case.

6. It is seen that the petitioner is facing trial for the alleged offence under Section 138 of the Act. The only ground raised by the petitioner for quashign the proceedings is that the respondent/complaint preferred the complaint only on the basis of the issue of second statutory notice dated 211. 2004 and as such the same is barred by limitation in view of the admitted fact that the respondent/complainant has not taken any steps to file the complaint after issuing the first notice dated 08.09.2004. It is contended by the learned counsel for the petitioner that the cause of action arose from the date of receiving statutory notice dated 08.