ORDER :

This Criminal Revision Case has been filed to set aside the order of dismissal, dated 08.06.2017, made in C.M.P.No.126 of 2016 by the learned Judicial Magistrate, Thiruchengode.

2. The petitioner/complainant has filed a private complaint before the learned Judicial Magistrate, Tiruchengode, for offence under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as 'Act')against the respondent/accused with delay. To condone the delay of 62 days, he filed a petition under Section 142(b) of the Negotiable Instruments Act, 1881 in C.M.P.No.126 of 2016. The learned Judicial Magistrate, Tiruchengode, by order, dated 08.06.2017, dismissed the petition, against which the present Criminal Revision Case.

3. The learned counsel for the petitioner submitted that in this case, statutory notice was issued by the petitioner on 12.05.2015, which was received by the respondent on 14.05.2015. As per Section 138(c) of the Act, the cause of action would arise when the drawer of the cheque fails to make payment of the cheque amount to the payee within 15 days of the receipt of the legal notice. Hence, the date of receipt of the notice by the respondent is very important for filing a complaint without any delay, if the respondent fails to give reply for the legal notice. He further submitted that the respondent had sent a reply to the petitioner on 27.05.2015. On the date of receipt of the reply by the accused, the limitation period cannot be calculated. Hence, the date of reply of legal notice of the accused cannot be calculated for the purpose of limitation. In this case, the cause of action arose on 30.05.2015, i.e., 15th day of the receipt of the legal notice. Within 30 days from the date of cause of action, the petitioner ought to have filed a complaint before the learned Judicial Magistrate, Tiruchengode i.e., on or before 29.06.2015, but the complaint was filed by the petitioner on 31.08.2015, for the reason that the case records and other papers got mixed up. With great difficulty, it was traced out, due to which, the delay occurred. On that ground, the petitioner filed a petition before the learned Judicial Magistrate, Tiruchengode to condone the delay in filing the complaint. The learned Magistrate dismissed the petition on the ground that the petitioner was aware about the reply of the respondent dated 27.05.2015 and also aware about the date of cause of action i.e., on 30.05.2015. Within two or three days, the petitioner ought to have filed a complaint before the Court, on the other hand taken his own time and filed the complaint with a delay of 62 days. The ground for dismissal of the petition in C.M.P.No.126 of 2016 is not acceptable.

4. The learned counsel further submitted that in the complaint, there is no deliberation about the reply given by the respondent. The finding of the trial Court is not proper and the delay in filing of the complaint by the petitioner ought to have been condoned. Likewise, the resolution for authorizing the Manager of the petitioner company M.Thirugnanasambandam to file a complaint was done on 21.07.2017. Hence, he prayed for setting aside the order of the Court below.

5. In support of his submissions, the learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in the case of “Birendra Prasad Sah Versus State of Bihar and another reported in (2019) 7 SCC 273” and the relevant portion is extracted as follows:-

“7.In the present case, the facts narrated above indicate that the appellant issued a legal notice on 31-12-2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4-12-2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second respondent does not as a matter of fact, admit that the legal notice