JUDGMENT.

1. The petitioner herein has sought to quash the order dated 23.12.2014 of issuance of process under Section 138 of the Negotiable Instruments Act in C.C.No. 1337/SS/2014 pending on the file of the learned Judicial Magistrate, First Class, Khadki, Pune.

2. The Petitioner-accused is the elder brother of the Respondents nos. 1 to 4, who are the complainants in the C.C.No.1337/SS/2014. The Complainants had alleged that Satara Polymers Pvt. Ltd. Company had advanced short term financial loan to the accused. The accused had issued cheque no.909950 dated 30.9.2014 for Rs.40 lakhs towards the repayment of principle amount of the loan. The said cheque was deposited in the bank on 30.9.2014 and was dishounoured on 7.10.2014 with remark ‘Exceeds arrangement’. The Complainants had alleged that they had received the said intimation on 7.10.2014. By demand notice dated 7.11.2014, the complainants called upon the accused to repay the said cheque amount. The said notice was received by the accused on 8.11.2014. The accused did not make the payment, hence the complainants filed the complaint dated 22.12.2014 for the offence under Section 138 of the Negotiable Instruments Act.

3. By order dated 23.12.2014 the learned Magistrate had issued process against the accused for the offence under Section 138 of the N.I.Act. The learned counsel for the petitioner has submitted that the cheque was dishonoured on 7.10.2014 and the complainant had received the intimation about the same on the same date. The demand notice was issued on 8.10.2014 and the same was received by the accused on 9.10.2014. He has submitted that the complaint was required to be filed within 30 days from the date of the cause of action. The learned Counsel for the accused has submitted that the complaint was filed on 22.12.2014 i.e 28 days beyond the period of limitation, without filing any application for condonation of delay, the learned Magistrate was therefore not competent to take cognizance of the offence.

4. The learned counsel for the petitioner has further submitted that the cheque was issued by a partnership firm- M/s. Gupta Enterprises in favour of Satara Polymers Pvt. Ltd. Company. It is submitted that neither the company nor the partnership firm is arrayed as accused and as such the complaint itself is not maintainable.

5. Learned Counsel for the respondent has submitted that the complaint was filed within the period of limitation and that there is no merit in the objection raised by the petitioners. It is submitted that the limitation will have to be decided on the basis of the material produced before the court in the course of the trial.

6. I have perused the records and considered the submissions advanced by the learned Counsels for the respective parties. The grievance of the accused is that the complaint under Section 138 of the N.I.Act was not filed within one month from the date of cause of action. Section 142 of Negotiable Instruments Act which governs taking of cognizance of the offence under Section 138 bars the court from taking cognizance of the offence unless the complaint is filed in writing by the payee or by the holder in due course, as the case may be, within one month from the date the cause of action arises under clause(c) of the proviso to Section 138. The cause of action contemplated under the provisions of Clause (c) would accrue on failure of the drawer to make payment within 15 days from the receipt of the statutory demand notice. Proviso to section 142 (b) empowers the court to condone the delay in filing the complaint upon being satisfied that the complainant had sufficient cause for not making the complaint within such period. The question which arises in facts and circumstances of the case is whether the complaint is filed within the limitation provided under section 142 (b) of N.I.Act.

7. It is not in dispute that the subject cheque was issued on 30.9.2014 and the same was presented in the bank on 30.9.2014. The said cheque was dishonour