A complaint under Section 138 of the NI Act must be filed within one month from the date of the cause of action, but courts can condone delays upon showing sufficient cause.

JUDGMENT

Dinesh Pathak, J.

Heard learned counsel for the applicant, learned AGA and perused the record.

2. The applicant has invoked the inherent jurisdiction of this court under Section 482 Cr.P.C. assailing the summoning order dated 10.04.2023 passed by Additional Chief Judicial Magistrate, Court No.9, Allahabad in Complaint Case No.843/2022 (B.S. Enterprises v. All Baith Enterprises Pro Shafaat Husain), under Section 138 Negotiable Instrument Act (in brevity "NI Act"), Police Station Muthhiganj, District Allahabad.

3. Respondent No.2 has filed a complaint dated 16.04.2021 with an averment that under business transaction accused (applicant herein) has taken some goods from the complainant and in lieu thereof he has furnished Cheque No.000179, dated 07.01.2021 amounting to Rs. 1,96,000/-. However, same was bounced for want of sufficient fund, while it was presented before the drawee bank for encashment. Despite repeated requests, accused/drawer of Cheque in question has refused to return the sum represented on the said Cheque.

4. Learned counsel for the applicant has advanced solitary submission questioning the condonation of delay by order impugned in filing the complaint that notice was sent on 15.01.2021, however, complaint was filed being barred by time on 16.04.2021. Learned Magistrate has illegally condoned delay sans opportunity of hearing that too without considering the fact that previous complaint no.119 of 2021 was dismissed on the ground of being filed before maturity.

5. Per contra, learned AGA has vehemently opposed the submissions as raised by learned counsel for the applicant and supported the summoning order dated 10.04.2023.

6. Having considered the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. and perusal of record it is manifested that a complaint has been filed owing to dishonour of Cheque No.000179 amounting Rs. 1,96,000/- for want of sufficient fund. It is own case of the complainant (respondent no.2), as stated in paragraph no.8 of the complaint, that the previous complaint no.119 of 2021 was discarded on the ground of being filed before the cause of action arises under the law. At later stage, second complaint in question has been filed with a bit of delay i.e. beyond the prescribed period of limitation. As per complaint case notice was sent to the accused on 15.01.2021. However, there is nothing on record to establish as to when it was served upon the opposite party (applicant herein) and, thereafter, he failed to pay the demanded money as mentioned in the complaint in pursuance of the provisions enunciated under the proviso to Section 138 NI Act. Complaint, however, has been filed on 16.04.2021. Assuming that registered notice dated 15.01.2021 has been served upon accused within one month as presumption lies under the law i.e. upto 14.02.2021. Thereafter money demanded was expected to be returned to the complainant within 15 days from the date of receipt of notice as enunciated under proviso (c) to Section 138 , hypothetically, which comes to March 1st, 2021.

7. Period of limitation for the purposes of filing the complaint is enunciated under Section 142 of the NI Act, which is quoted herein below :

"Section 142. Cognizance of offences.

[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action ar