The main legal point established is that the cause of action must arise before filing a complaint under Section 138 of N.I. Act, and the legal enforceability of the debt should be determined during the trial.

The above Criminal Original Petitions have been filed by the accused in C.C.Nos.15160 and 15161 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai respectively. The petitioners in both the above petitions are same. But, the respondent/complainant in the petitions are different. The petitioners are facing trial in both the cases for the alleged offence under Section 138 of N.I. Act. The second petitioner is the son of the first petitioner. The respective respondents have filed the private complaints under Section 138 of N.I. Act in respect of the alleged dishonour of cheques said to have been issued in their favour by the petitioners herein. Since the petitioners are same and common questions arise for consideration in both the Criminal Original Petitions, they are being disposed of by this common order.

2. Mr.Kalayanasundaram, learned senior counsel appearing for the counsel on record Mr.G.Sethuraman for the petitioners raised the following contentions:-

.(i) The first petitioner viz., Smt.S.Savithri in both the petitions is admittedly not the signatory of the cheques in question, whereas the second respondent is the signatory of the cheques and as such the complaints filed as against the first petitioner are not maintainable and liable to be quashed.

.(ii) As far as C.C.No.15160 of 2007 is concerned (Crl.O.P.No. 2689 of 2008), the legal notice of demand dated 110. 2007 was received by the petitioners only on 210. 2007 and the 15 days time expired on 011. 2007, whereas even before the expiry of the 15 days of time, the complaint had been filed on 011. 2007 itself. Though the cognizance had been taken by the learned Metropolitan Magistrate after the expiry of 15 days , since the complaint had been admittedly filed before the expiry of 15 days from the date of receipt of such notice, the complaint is liable to be quashed.

(iii) There is no legally enforceable liability on the part of the petitioners and as such, the complaints filed under Section 138 of N.I. Act ought not to have been entertained.

3. In support of the above said contentions, the learned senior counsel relied upon the following decisions:-

.(i) (2004) 4 Supreme Court Cases 70 ( S.M.S.Pharamaceuticals Limited V. Neeta Bhalla and another)

.(ii) AIR 2007 SUPREME COURT 912 (Saroj Kumar Poddar V. State (NCT of Delhi) and another

(iii) AIR 2007 SUPREME COURT 1454 (N.K.Wahi V.Shekhar Singh and others.

.(iv) (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another)

.(iv) (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another

4. In all the aforesaid decisions, it has been laid down that in terms of Section 138 of

N.I. Act, a complaint/petition alleging an offence thereto must demonstrate that the following ingredients exist that

.(i) a cheque was issued;

.(ii) the same was presented;

(iii) but, it was dishonoured;

.(iv) a notice in terms of the said provisions was served on the person sought to be made liable; and

.(v) despite service of notice, neither any payment nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.

5. Placing reliance on the aforesaid decisions, the learned senior counsel submitted that only after the expiry of 15 days from the date of receipt of legal notice, the cause of action for filing the complaint actually arises and hence, a complaint could be filed only after arising of such cause of action and no complaint could be filed before that and if any complaint is filed before arising of such cause of action, such complaint is liable to be quashed. According to the learned senior counsel, admittedly, complaint in C.C.No.15160 of 2007 had been filed on 011. 2007 i.e., before the cause of action has actually arisen and the cause of action had actually arisen only after 011. 2007 and therefore the said case is liable to be quashed.

6. On the aforesaid submission, Mr.S.K.Babu an