A complaint filed under S.138 prior to the cause of action is not necessarily premature and can await maturity without dismissing the complaint.

1 Whether a complaint made under S.138 of the Negotiable Instruments Act (for short 'the Act') prior to arising of the cause of action is liable to be dismissed as premature is the question that arises for consideration in this appeal.

2 The appeal by the de facto complainant is directed against the Judgment passed by the IX Metropolitan Magistrate, Hyderabad in C. C. No. 134 of 1997 dated 24/04/2000 upholding the preliminary objection taken by the 1st respondent-accused that the complaint filed under S.138 of the Act is premature for non compliance of Clause (c) of the proviso to S.138 of the Act and hence not maintainable, and recording a finding on that basis that the 1st respondent-accused was not guilty of the offence and acquitting him of the same.

3 The brief facts leading to the filing of the appeal are that for dishonouring of cheque dated 03/02/1997 issued by the accused to the appellant-complainant in discharge of amount borrowed from the appellant, the appellant, issued a notice as contemplated under Clause (b) of the proviso to S.138 of the Act, which was received by the accused on 20/02/1997 under Ext. P4 acknowledgment and the complaint was filed on 06/03/1997 i.e., on the 14th day before the expiry of the statutory period of 15 days. The complaint was taken cognizance and the trial was also concluded. At the time of arguments, however, a preliminary objection was taken by the accused as to the maintainability of the complainant on the ground that it has been filed before the expiry of fifteen days statutory period provided under Clause (c) of the proviso to S.138 and, therefore, it is premature and no cause of action had arisen to the complainant to maintain the complaint. The lower Court without adverting to any of the facts and the date on which the complaint was taken cognizance and whether subsequent to the falling of the complaint cause of action had arisen to the complainant to maintain it, upheld the preliminary objection raised by the 1st respondent-accused with regard to the maintainability of the petition and accordingly held that the petit on filed by the appellant is premature. The Court below further held that it would be unjust to consider the evidence on record and to ascertain the liability, if any, of the accused from the evidence available on record and accordingly found that the accused was not guilty of the offence and acquitted him of the offence.

4 When the case was taken up for hearing on 12/09/2006, learned counsel for the 1st respondent was not present and, therefore, I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor and directed that the case be listed for Judgment today. Even today also when the matter was called, none appeared for the 1st respondent.

5 The learned counsel for the appellant submitted that the Court below would be within its competence to take cognizance of the complaint before maturity period under the provisions of the Act and, therefore, the Court below erred in upholding the preliminary object that the complaint was premature on the ground that no cause of action had arisen to maintain the complaint as it was filed before expiry of fifteen days statutory period as provided under Clause (c) of the proviso to S.138 of the Act, and in support of the same, he relied upon the judgment of the Apex Court in Narasingh Das Tapadia v. Goverdhan Das Partani and another , 2000 (7) SCC 183 . Learned Counsel therefore, submitted that the order of the Court below in holding the 1st respondent as not guilty and acquitting him of the offence is not proper and liable to be set aside.

6 Learned Additional Public Prosecutor supported the case of the appellant and submitted that the Court below was not justified in upholding the preliminary objection and acquitting the accused of the offence.

7 The question that arises for consideration in this appeal is, whether the Court below was justified in upholding the preliminary objection that the com

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