HON’BLE SMT. JUSTICE JUVVADI SRIDEVI CRIMINAL PETITION No.1067 of 2022

ORDER

This Criminal Petition is filed by the petitioner /accused seeking to quash the proceedings against him in C.C.No.148 of 2019 pending on the file of learned Judicial Magistrate of First Class at Metpally, Karimnagar District registered for the offence under Section 138 of the Negotiable Instruments Act (for short ‘the Act’).

02. Heard Sri Mohd. Abdul Kareem Khan, learned counsel representing Sri Mahboob Hussain, learned counsel for petitioner, Sri N.Bhujanga Rao, learned counsel appearing for respondent No.2 and Smt.S.Madhavi, learned Assistant Public Prosecutor for the State-

respondent.

03. Brief facts of the case are that: Respondent No.2-

complainant has filed a complaint under Section 200 of Cr.P.C. for the offence under sections 138 of Negotiable Instruments Act, before the learned trial Court against accused. Respondent No.2 and accused having known each other and out of acquaintance, accused borrowed an amount of Rs.6,00,000/- from the complainant on 20.05.2017 and he executed a promissory note with 1.5% interest per month in favour of the complainant for the purpose of house construction at Karimnagar. In discharge of the said amount, accused issued a cheque bearing No.958795 for an amount of Rs.8,00,000/- drawn on State Bank of India, Branch at Vavilapally, Karimnagar District on 30.04.2019. The complainant presented the cheque for realization on 03.05.2019 but the same was dishonouored as “funds insufficient”. The complainant got issued legal notice dated 20.05.2019 to accused. As accused has not paid the cheque amounts, the proceedings under Section 138 of the Act are initiated by the complainant-respondent No.2.

04. Learned counsel for petitioner-accused submits the cause of action for filing the complaint under section 142 of the Act would arose only after 15 days of service of notice and since the complaint was filed during the pre-offence period, accused cannot be found guilty of the offence under section 138 of the Act.

In support of his contention he relied on a decision held by Hon’ble Supreme Court in Yogendra Pratap vs. Savitri Pandey &

Anr. In Crl.A No.605 of 2012, wherein it was stated as-

37. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. v. M/s.Pennar Peterson Securities Ltd. and ors. Etc. in AIR 2000 SC 954:( 2000) 2 SCC 745, and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section

138 of the NI Act.

39. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy Private Limited and Anr v. Llyds Registe