Hon'ble Suneet Kumar, J

Revision is directed against the summoning order dated 5 March 2016, in proceedings under Section 138 Negotiable Instrument Act 1881 (in brief NI Act), P.S. Line Bazar, District Jaunpur passed in Complaint Case No. 264 of 2015 (Vinod Kumar Tiwari Vs. Abhishek Kumar).

The facts briefly stated is that the complainant-opposite party no.2 filed a complaint on 14.5.2015 against the applicant-revisionist contending that two cheques dated 29.9.2014 and 13.10.2014 respectively, were returned by the Bank on 7.4.2015 for insufficient funds. On same date notice by registered post was sent, the applicant did not pay the dues, thereafter, the present complaint was instituted.

It is sought to be urged that there was no cause of action for filing the complaint for the reason that the complaint was premature as it was filed within 15 days from the date of notice dated 7.4.2015, the date of receipt of the notice was not mentioned in the complaint, therefore, in terms of section 27 General Clauses Act, 1897, there would be a presumption that the notice would be served within 30 days, therefore, the cause for filing the complaint would have arisen on 22.5.2015 i.e. after a lapse of 45 days, further, the cheques were presented beyond their statutory valid period, i.e cheques dated 29.9.2014 and 31.10.2014 were presented on 7.4.2015, the validity period would be upto 29.12.2014 (three months) as per notification of Reserve Bank of India dated 1 April 2004.

Section 138 N.I. Act is a penal provision, it must, therefore, be construed strictly, section 138 (2) enacting part of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or fine is the dishonour of a cheque for insufficiency of funds, etc in the account maintained by the drawer with the bank for discharge of a debt or other liability whether in full or part. The language used in the provision is unambiguous and the ingredients of the offence clearly discernible namely (a) cheque is drawn by the accused on an account maintained by him with a banker, (b) the cheque amount is in discharge of a debt or liability, and (c) the cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank. Any dishonour falling within the four corners of the enacting provision would be punishable without much ado.

Section 138 is structured in two parts, the primary and the provisory. The contents of the proviso place conditions on the operation of the main provision, while it does not form a constituent of the crime itself, it modulates or regulates the crime in circumstances where,unless its provisions are complied with, the already committed crime remains impervious to prosecution. Section 142 employs the term "cause of action" as compliance with the three factors contained in the proviso are essential for the cognizance of the offence, even though they are not part of the action constituting the crime, therefore, so far as the offence itself, proviso has no role to play.

The proviso that comprises the second part of the provision, the following would constitute "cause of action" referred to in sub-clause (b) above:

(a) The complainant has presented the cheque for payment within the period of six months from the date of the issue thereof;

(b) The complainant has demanded the payment of the cheque amount from the drawer by issuing a written notice within thirty days of receipt of information by him from the bank regarding the dishonour;

(c) The drawer has failed to pay the cheque amount within fifteen days of the receipt of the notice.

A proper understanding of the scheme underlying the provision would thus make it abundantly clear that while the offence is complete upon dishonour, prosecution for such offence is deferred till the time the cause of action for such prosecution accrues to the complainant. The proviso in that sense simply postpones the actual prosecution of the of