The court clarified the distinction between taking cognizance of an offence and filing a complaint. Mere presentation of a complaint does not mean that cognizance has been taken. The court also emphasized the importance of complying with the time limits mentioned in the Act for filing a complaint and making payment after receiving a notice.

1. Leave granted.

2. On proof of charge, the respondent was convicted by the trial court under S.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") and sentenced to undergo simple imprisonment for six months. His appeal was dismissed by the Appellate Court confirming the conviction and sentence passed by the trial court. However, in revision, the High Court set aside the judgment of the trial court as well as the Appellate Court holding that the complaint filed against the respondent was premature.

3. The facts of the case are that the respondent borrowed a sum of Rs. 2,30,000/- from the appellant and issued a post-dated cheque in his favour. When the cheque was presented for demand on 3.10.1994, the same was dishonoured by the bank on 6.10.1994 due to "insufficient funds". The appellant demanded the accused to repay the amount vide his telegrams sent on 7.10.1994 and 17.10.1994. A notice was also issued to the respondent on 19.10.1994 demanding to repay the amount. Despite receipt of the notice on 26th October, 1994, the respondent neither paid the amount nor gave any reply. To prove his case, the complainant/ appellant examined three witnesses and proved documents Exts. P-1 to P-6. In his statement under S.313 of the Cr. P.C., the respondent denied the allegations but refused to lead any defence evidence. On analysis of the evidence and after hearing the Counsel for the parties, the trial court concluded as under:

"The complainant established that the accused borrowed Rs. 2,30,000/- from him and the accused issued Ext. P3 cheque and the cheque was returned due to insufficiency of funds and the accused did not repay the amount inspite of receipt of notice from the complainant and hence the accused is liable for punishment under S.138 of N.I. Act."

4. As noticed earlier, the appeal filed by the respondent was dismissed on 19th April, 1997. The High Court found that, as the notice intimating the dishonourment of cheque was served upon the accused on 26th October, 1994, the complainant/ appellant could not file the complaint unless the expiry of 15 days period. It was found on facts that the complaint filed on 8.11.1994 was returned after finding some defect in it. However, when refiled, the Court took the cognizance on 17.11.1994. The High Court held that the original complaint having been filed on 8.11.1994, was premature and liable to be dismissed.

5. S.142 of the Act provides:

"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 S.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 Cl. (c) of the proviso to S.138;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under S.138."

6. Sub-s. (c) of S.138 which makes the dishonour of cheque an offence provides that nothing contained in the Section shall apply unless:

"(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.

Explanation - For the purposes of this Section, 'debt or the liability' means a legally enforceable debt or other liability."

7. The compliance of Cl. (c) of proviso to S.138 enables the Court to entertain a complaint. Cl. (b) of S.142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under Cl. (c) of the proviso to S.138. No period is prescribed before which the complaint cannot be filed and if filed, not disclosing the cause of action in terms of Cl. (c) of the proviso to S.138, the Court may not take cognizance till the time the cause of ac