JUDGMENT

Shekhar Kumar Yadav, J.

The present 482 Cr.P.C. application has been filed to quash summoning order 17.9.2018 as well as entire proceedings of Complaint Case No. 02 of 2018 (Vinay Kumar Patel v. Ajay Prakash Mishra) under Section 138 of Negotiable Instrument, P.S. Cholapur, District Varanasi, pending in the court of Additional Chief Judicial Magistrate Court No.1, Varanasi.

2. The learned counsel for the applicant submitted that the legal notice issued in this case was accepted by the accused on 09.11.2017, however, the complaint was filed on 04.01.2018, therefore, it is argued that, the complaint was filed after expiry of the statutory period and the cognizance taken in this matter without condoning the delay. He next submitted that cognizance has been taken by the Court below on a time barred complaint and as such, the complaint is liable to be quashed. In this connection, reliance is placed on the case of Prem Chand Vijay Kumar v. Yashpal Singh and another, reported in 2005(3) PLJR SC 115, SIL Import, USA v. Exim Aides Silk Exporters, Bangalore , (1999) 4 SCC 567 .

3. Learned AGA for the State opposed the prayer of the applicant and submitted that order of cognizance cannot be said to be bad in law simply because that the same has been taken without condoning the delay. A minor irregularity does not go to the root of the case and cannot vitiate the order of cognizance. He has further submitted that the complaint should not be quashed on technical ground looking to the object and purpose of enactment of section 138 of the N.I. Act. He has further submitted that when the learned Magistrate has not exercised discretion in condoning delay, same is not required to be interfered by this Court in exercise of inherent jurisdiction under Section 482 of the Cr. P.C.

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

5. In this connection, it is apposite to refer Section 138 (c) and 142(1)(a) and (b) of the N. I. Act, as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.-

xxx

(a) xxx

(b) xxx

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

xxx

142(1). Cognizance of offences:- xxx

(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 arises under clause (c) of the proviso to Section 138.

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]

6. In this case the record discloses the relevant dates noted as under :-

a) Date of cheque bounce : 17.10.2017; b) Date of Legal Notice : 09.11.2017; c) Date of expiry for making payment: 24.11.2017; d) cause of action arose on : 25.11.2017; e) Period of Limitation shall be counted from : 26.11.2017; f) Limitation for filing of the complaint : 25.12.2017; g) Actual date of filing of the complaint : 04.1.2018.

7. In the present case, the accused herein accepted the notice on 9.11.2017. Then the accused was required to make the payment of the said amount within 15 days from the date of receipt of notice i.e. on or before 24.11.2017, since 09.11.2017, the date of receipt of notice has to be excluded, while calculating 15 day's time under section 138(c) of the NI Act. Thus, the cause of action to file the comp