A complaint under Section 138 of the Negotiable Instruments Act, 1881 can be filed within a month only after the expiry of 15 days from the date of receipt of the notice in accordance with clause (b) of the proviso to Section 138 of the Act. In case of refusal to receive such notice, the date of such refusal shall be treated as the date of receipt of such notice. The period of 15 days is to be computed from the date of refusal. If the complaint case is filed before the expiry of the period of 15 days as provided in clause (c) to the proviso of Section 138, then cognizance of the offence cannot be taken in view of the provision in clause (b) of Section 142.

( 1 ) HEARD. Perused the written note of submission and the impugned order.

( 2 ) OPPOSITE party lodged a complaint case vide ICC No. 5 of 1995 against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, the 'act') alleging therein that a cheque for rs. 5,000/- issued by the petitioner in favour of the opposite party with a view to discharge his liability was returned by the Bank without payment on 8-21-1994 with the endorsement of 'insufficient funds'. On 21-12-1994, in accordance with Section 138 proviso (b) of the Act opposite party sent a notice. On 28-12-1994, petitioner refused to receive the notice. Hence, on 3-1-1995 opposite party filed the complaint petitioner in the Court of s. D. J. M. , Bhuwaneswar alleging commission of the offence under Section 138 of the Act. The S. D. J. M. took cognizance and issued process under Section 204 of the Code of criminal Procedure, 1973 (in short, 'the code' ). After appearing in that case petitioner challenged the order of cognizance and prayed to quash it on the ground that complaint case was filed before expiry of 15 days from the date of refusal of notice and therefore in view of the provisions of Sections 138 and 142 of the Act, the complaint case was premature and not maintainable.

( 3 ) LEARNED S. D. J. M. rejected the aforesaid contention on the ground that refusal to receive notice cannot be treated as service of notice and that the provisions of law in the act is silent as to how the period of limitation is to be computed in case of refusal to receive notice. According to learned S. D. J. M. , since the petitioner had not paid the amount due in spite of dishonour of the cheque and even after expiry of 15 days time from the date of offer of the notice on him, hence the complaint case should continue.

( 4 ) PETITIONER challenges legality and correctness of the said order. He reiterates the self-same point. Learned Counsel appearing for the opposite party supports the findings in the impugned order.

( 5 ) CHAPTER XVII in the Act containing sections 138 to 142 was inserted by Act 66 of 1988 which came into force no 29-3-1989. Special provision was made to guard against payment of fake cheque or improper cheque issued within a view to discharge of debt or other liability. When such cheating is made it has been made punishable under Section 138. To appreciate the point in proper manner, relevant provisions i. e. , Sections 138 and 142 of the Act are quoted herewith :"138. Dishonour of cheque for insufficiency, etc. of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (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, a