The date of service of the notice of demand for payment is not a mandatory requirement for a complaint under Section 138 of the Negotiable Instruments Act, and the question of whether the offense was complete on the day the complaint was filed is a question of fact to be decided by the trial court.

These petitions under Section 482, Crpc have been filed to quash the proceedings of complaint case Nos. 947 of 1998,543 of 1998,542 of 1998 and 946 of 1998, all pending in the Court of CJM, Agra under Section 138 of N. I. Act filed against the petitioners by the Respondent No. 2. All the complaints have been filed with similar allegations and these petitions involve the common questions for decision and therefore, are being disposed of by this common judg ment.

2. 1 have heard Sri V. K. Singh, learned Counsel for the petitioners in all the four cases and Srik. K. L Dwivedi, learned Coun sel for the Respondent No. 2. The com plaint under Section 138, N. I. Act have been filed by the Respondent No. 2 against the petitioners with the usual allegations that the cheque issued by the petitioners were dishonoured and the amount of the cheque has not been paid in spite of the service of notice within fifteen days of the date of the dishonour. That, therefore, the petitioners have committed an offence punishable under Section 138, N. I. Act.

3. It is contended by the learned Counsel for the petitioners that criminality has been attached by Section 138, N. I. Act to the civil dispute. That, therefore, in order to fasten criminal liability on a person the requirement of the law has to be fully complied with. Learned Counsel for the petitioners has referred to Section 138 and it is alleged that the proviso (b) of section provides that the notice of demand for the payment of the amount of the cheque should be given within fifteen days of the receipt of infor mation from the bank regarding the return of the cheque as unpaid. It is contended that clause (c) of the proviso of that section further provides for fifteen days time to the drawer to make the payment of the cheque, therefore, after the service of the notice the amount can be paid by the drawer of the cheque within fifteen days. That if the amount is paid within 15 days no offence under Section 138n. I. Act is made out.

4. It is also contended that clause (b) of Section 142 provides that the complaint can be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. It is contended that according to said proviso the cause of action arises on the expiry of fifteen days of the service of the notice regarding the dishonour of the cheque to the drawer. That, therefore, unless the date of the service is mentioned it cannot be said that cause of action for filing com plaint has a risen.

5. It is, therefore, contended that the date of sending the notice as well as the date of service of the notice should be mentioned in the compliant to show that the amount of the cheque was not paid by drawer within fifteen days of the notice. The contention of the learned Counsel is that in the complaint it is mentioned that the notice was sent on 13-2-1998 by registered post which have been delivered to the accused. However, the date of the delivery has not been mentioned. The complaint has been filed on 11-3-1998, therefore, it may be within a period of fifteen days of the service of the notice which have been allowed for making the payment. That unless fifteen days has ex pired after the service of the notice the offence under Section 138, N. I. Act is not complete. That, therefore, in the absence of allegations as to when the notice was served it cannot be said that offence was complete on the day, the complaint was filed i. e. on 11-3-1998. That, therefore, the complaint is not maintainable. Learned Counsel in support of the argument has referred to the case of Rajiv Kumar v. State of UP. , 1991 (28) ACC353. In this case the proviso of Section 138, NI Act considered and also Section 142, NI Act were con sidered and it was held that the informa tion about non-payment of the cheque was served on 27- 2-1990. The notice was sent by registered post on 8-3-1990. There is no evidence or acknowledgment receipt of the post office to sh