Arvind Kumar Tripathi II, J.

1. The present criminal appeal arises out of the judgment/order dated 11.5.2007 passed by the trial court under Section 138 of Negotiable Instrument Act whereby learned Magistrate has acquitted Smt. Indresh Sharma respondent no.2 of the offence under Section 138 of the Negotiable Instrument Act.

2. As per the record, a complaint was filed by Lakhan Singh ( the present appellant) against Smt. Indresh Sharma under Section 138 of the Negotiable Instrument Act on 24.12.2002. The court below has registered the complaint and ordered that statement under Section 200 Cr.P.C. be recorded. After recording of the statement under Section 200 Cr.P.C. and 202 Cr.P.C., accused was summoned on 6.3.2003 under Section 138 of the Negotiable Instrument Act to face trial. Accused appeared and the accusation was explained to her. Statement of prosecution witnesses were examined and after statement under Section 313 Cr.P.C. of the accused defence witness were examined and after hearing the arguments the court below acquitted the accused on the ground that the filing of the complaint was premature and also the cognizance taken was also premature as 15 days has not elapsed after service of notice.

3. Feeling aggrieved this criminal appeal has been filed.

4. Heard Sri K.M.Asthana, learned counsel for the appellant and learned A.G.A. Respondent No.2 did not appear despite personal service.

5. It has been argued by the side of learned counsel for the appellant that the registered notice of demand dated 5.12.2002 was sent by the appelalnt to the accused respondent and admittedly, it was received by her but she did not pay the amount and did not discharge her liablity of debt. Hence, offence under Section 138 of the Negotiable Instrument Act was made out. It was argued that the ground of acqittal was wrong because the Magistreate is said to have taken cognizance on 6.3.2003 while the accused was summoned after going through the statement of witnesses under Sections 220 and 202 Cr.P.C. and after perusal of the complaint.

6. In support of his arguments learned counsel for the appellant has relied upon the case of Narsingh Das Tapadia V. Goverdhan Das Partani and Another reported in ( 2000)7 SCC 183 and Akash Garg V. State of U.P.and others reported in 2011( 11) ADJ, 849.

7. In the case of Akash Garg V. State of U.P.and others ( supra), it was held by this Court that a Magistrate can be said to have taken cognizance of offence if he has taken judicial notice of the accusation and applies his mind to the allegation made in the complaint or in the police report or the information received otherwise and the material filed therewith. In other words when a Magistrate applies his mind to the facts of the case and material collected during investigation and is satisfied that the allegations constitute an offence and initiate proceeding against the accused he can be said to have taken cognizance of the offence. Relying upon this decision it was argued that the complaint was filed on 24.12.2002 and from the order dated 24.12.2002 it is nowhere reflected that the Magistrate has ever applied his mind to the facts and materials on record. Therefore, order dated 24.12.2002 cannot be described with an order "taking cognizance" of the offence. In the case of Narsingh Das Tapadia V. Goverdhan Das Partani and Another ( supra) it has been held that where the complaint was filed before the cause of action arose in terms of Section 138( c) of N.I.Act in stead of dismissing it, taking of cognizance can be postponed till the cause of action arose.

8. Learned counsel for the appellant again relied upon a decision of Apex Court in the case of Fakhruddin Ahmad V. State of Uttaranchal & Anr. reported in 2008 AIR SCW 5881, the Apex Court in para 14 and para 15 has held that :

"14. From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by

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