JUDGMENT :

Subhash Upadhyay, J.

The present Application under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the applicant Mohd. Usman against the summoning order dated 08.09.2015, passed by  learned Additional Chief Judicial Magistrate, Vikas Nagar, District Dehradun, in Criminal Complaint Case No. 425 of 2015, Saleem Ahmad vs. Mohd. Usman, under Section 138 of the Negotiable Instruments Act, 1881.

2. Learned counsel for the applicant contends that the applicant was in need of money and the respondent no. 2 promised him a loan of Rupees One Lakh and as a security, he handed over blank cheque to the respondent no.2. However, the respondent no. 2 presented the said cheque to the Bank by making interpolation by making it to be of Rs. 10 lakhs. The said cheque was dishonoured due to insufficient fund and a Criminal Case under Section 138 of the Negotiable Instruments Act, 1881 was filed before the Court oflearned Additional Chief Judicial Magistrate, Vikas Nagar, Dehradun. On the basis of the said complaint, the learned Court took cognizance and summoned the applicant to face trial vide summoning order dated 08.09.2015, which is impugned in the present C-482 Application.

3. Learned counsel for the applicant contends that a legal notice was sent to the applicant by the respondent through his counsel on 27.07.2015 and even before expiry of mandate period of 15 days, the complaint was filed and, as such, the complain was not a complaint in the eyes of law and on the basis of such defective complaint, proceedings under Section 138 of the Negotiable Instruments Act, 1881 could not have been initiated against the applicant.

4. The counsel for the applicant submits that though it is his case that the legal notice was never served on the applicant but if for the sake of arguments, it is presumed that the notice was received by the applicant on the very next day, i.e., on 28.07.2015, even then the case could not have been filed before 13.08.2015, whereas the complaint was filed on 11.08.2015. The following submissions have been made by the applicant in para 9 to 14 of the C-482 Application, which are extracted herein below:

“ 9. That as alleged in the complaint the respondent no 2 has also issued a legal notice to the applicant on 27 07.2015 through his counsel Nitin Kumar Verma to make payment within 15 days from the date of receiving of notice, however the fact remains that the respondent no 2 has nowhere mentioned in the complaint as on which date service of notice is made upon the applicant, therefore. the summoning to the applicant in the above said case is liable to be quashed. It is further submitted that the applicant has not received any legal notice till 30.07 2015 and thus considering the same the complaint being defective is not sustainable in the eyes of law.

10. That at this juncture it is relevant to mention herein that it is settled law of land and the provisions of section 138 of NI Act mandates that no complaint can be filed for an offence u/s 138 of NI Act unless period of 15 days from the date on which legal notice has been served has elapsed, however in the instant case since complaint filed u/s 138 of NI Act before the expiry of 16 days from the date on which notice has been served on drawer/applicant is no complaint in eye of law, further no cognizance of an offence can be taken on the basis of such complaint, therefore, the summoning order is liable to be quashed.

11. That it is also relevant to mention herein that upon perusal of postal receipt it seems that the legal notice is dispatched by the complainant on 27.07.2015, since it is nowhere mentioned that on which date the legal notice was served upon the applicant therefore, the complaint itself is not tenable in the eyes of law and taking cognizance by court is also bad in law because the provision of Ni Act specifically stipulates that the cause of action would arose to file a complaint u/s 138 only from the date of serving of notice to the