The court confirmed that for a complaint under Section 138, the cause of action date excludes the day it arises when computing limitation, emphasizing strict adherence to procedural timelines.

JUDGMENT :

PARTHIVJYOTISAIKIA, J.

Heard Mr. S. A. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. A. Hussain, the learned counsel representing the respondent no. 2.

2. This is an application under Section 397 read with Section 401 of the Criminal Procedure Code whereby the judgment and order dated 23.02.2024 passed by the learned Sessions Judge (FTC), Barpeta in Criminal Appeal No. 12/2023 affirming the judgment dated 05.04.2023 passed by the learned SDJM, Barpeta in NI Case No. 84/2021 is put to challenge. 3. The cheque in question was issued on 21.04.2021. The same was presented to the bank on 23.04.2021. The bank informed on 26.04.2021 about dishonour of the cheque. The complainant sent a legal notice to the drawer of the cheque on 06.05.2021 i.e. after 10 (ten) days of dishonour of the cheque. The notice was received by the drawer on 27.05.2021. The complainant filed the complaint case on 16.06.2021.

4. The present petitioner has claimed that the cause of action for the case arose on 23.04.2021, on which date the bank informed the complainant about dishonour of the cheque. According to the petitioner, the complaint petition was filed after 19 (nineteen) days from 27.05.2021.

5. I have considered the submissions made by the learned counsels of both sides.

6. At this stage, I shall rely upon a judgment of the Hon’ble Supreme Court that was delivered in Subodh S. Salaskar v. Jayprakash M. Shah , (2008) 13 SCC 689 . Paragraphs 12, 14, 19 and 21 of the said judgment are quoted as under:

“12. Before embarking on the questions raised, we may notice that the proviso appended to Section 138 of the Act limits the applicability of the main provision stating:

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

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(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.”

Section 142 of the Act also puts a limitation on the power of the court to take cognizance of the offences, which reads as under:

“142. Cognizance of offences.—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 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.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.”

14. A complaint petition alleging commission of an offence under Section 138 of the Act must demonstrate that the following ingredients exist i.e.:

(a) a cheque was issued;

(b) the same was presented;

(c) but, it was dishonoured;

(d) a notice in terms of the said provision was served on the perso