ORDER :- Application has been filed for quashing the proceedings of criminal complaint case No. 1849 of 2004 Saurabh Srivastava v. Anil Kumar Shukla) under Section 138 of Negotiable Instruments Act (hereinafter referred as an Act), P.S. Kotwali pending in the court of C.J.M, Hamirpur.

2. I have heard Sri V.S.Parmar, learned counsel for the applicant and Sri Sunil Vasistha, learned counsel for the complainant opposite party No. 2 and learned A.G.A. for State and have perused the material on record.

3. Counter and rejoinder affidavits have been exchanged.

4. Brief facts are that the complainant opposite party No. 2 filed a complaint in the court of C.J.M. on 18-9-2004 alleging that the complainant was the owner of Truck No. UP 77 A 3932 along with his brother. This truck was sold to accused applicant for Rs. 3 lacs and Rs. 75,000/- was paid in cash and four cheques were issued by the applicant accused. One cheque was for Rs. 1.50 lacs No, 272140 dated 10-8-2004 and three cheques were for Rs. 25,000/- each dated 5-6-2004 and 5-7-2004 and 5-8-2004. All these three cheques were post dated cheques. The cheque for Rs. 1.5 lacs was presented in the Bank on 10-6-2004 but it was returned with the endorsement insufficient fund. The complainant gave a notice on 29-6-2004 but to no effect. The cheque dated 5-8-2004 for Rs. 25,000/- was also returned by the Bank on 27-8-2004. Thereafter the complainant gave a notice dated 3-9-2004 regarding the two cheques i.e. one cheque for Rs. 25000/- and other for Rs. 1.50 lacs which was served on the accused applicant but he did not make any payment and thereafter complaint was filed on 18-9-2004.

5. The case of the applicant is that he had received the notice on 6-9-2004 but the complaint was filed on 18-9-2004 i.e. before the expiry of period of 15 days and therefore the complaint was not competent under Section 142 (b) of the Act as cause of action had not arisen to take cognizance and the complaint being premature is liable to be quashed. It has also been contended that admittedly complainant gave a notice on 29-6-2004 regarding the cheque for Rs. 1.50 lakhs but no complaint was filed regarding that notice and therefore the present complaint is incompetent for that amount.

6. Complainant filed counter affidavit and contended that complaint is not premature and the applicant accused admits the receipt of the notice but he did not make the payment and therefore the complaint is not liable to be quashed. Learned Magistrate passed the summoning order on 15-4-2005 and it shows that the complaint is not premature.

7. Learned counsel for the applicant has contended that the complaint is premature and is liable to be rejected and that the complainant should have presented the complaint after the expiry of 15 days of the receipt of the notice and in any case if the complaint was presented earlier it should have been returned as provided in Section 201(1) Cr.P.C. or cognizance should have been taken after that period but it was not done. The question whether the complaint is premature or not depends an the fact as to when the magistrate is said to have taken cognizance of an offence. In the instant case on 18-9-2004 learned Magistrate applied his judicial mind and directed to register the case and also fixed a date for recording the statement of the complainant under Section 200 Cr.P.C. He also argued that regarding cheque for Rs. 1.50 lacs the complaint should have been presented within one month after the expiry of the period of notice dated 29-6-2004.

8. Learned counsel for the complainant has contended that although the learned Magistrate directed for registration of the case and also fixed the date for recording of the statement on 18 9-2004 but it cannot be said that learned Magistrate took cognizance on 18-9-2004 and on this basis he contended that the complaint is not premature and the application under Section 482 Cr.P.C. is liable to be dismissed.

9. It will be relevant to refer the provisions (b) and (c)

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