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Mahendra Lal Jaiswal v. State Of U.P. & Another - CRIMINAL REVISION No. 5111 of 2005 [2005] RD-AH 6905 (5 December 2005)


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Court No. 46

Criminal Revision No. 5111 of 2005

Mahendra Lal Jaiswal Vs. State of U.P. and another

Hon'ble Mukteshwar Prasad J.

Heard learned counsel for the revisionist, learned A.G.A. and perused the impugned order-dated 19.9.2005 passed by Additional Chief Judicial Magistrate V Varanasi in complaint case no. 1125 of 2005 Mahendra Lal Vs. Tarun Kumar under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act).

I find from perusal of the impugned order-dated 19.9.2005 that learned Magistrate dismissed the complaint filed under Section 138 of the Act. It has been contended on behalf of the revisionist that the court below erred in taking into consideration the date of sending notice to the accused. He has drawn my attention to Clause (c) of Section 138 of the Act and Section 142 Clause (3) of the Act. He has further relied upon a decision of the Apex Court in Prem Chand Vijay Kumar Vs. Yashpal Singh and another 2005 SCC (Cri) 1153. Proviso to Section 138 of the Act provides in clear words that nothing contained in this section shall apply unless the conditions given in Clauses (a), (b) and (c) are fulfilled. Clause (c) provides that drawer of such cheque fails to make payment of the said amount of money to the payee within fifteen days of the receipt of the notice. It means the cause for action for filing complaint arises after expiry of fifteen days from the date of service of notice.

Section 142 Clause (a) and (b) provides that no court shall take cognizance of any offence unless such complaint is made within one month from the date on which cause of action arose under Clause (c) of Section 138 of the Act.

Summarizing the legal position, the Apex Court in the aforesaid decision has observed in paragraph-11 of the judgment as under: -

"The period of one month for filing the complaint will be

reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires."

So far the instant case is concerned, Tarun Kumar received a notice on 25.4.2005. It means he could issue another cheque or make payment in cash by 10.5.2005.  In case of failure on his part, a complaint could be filed against him by 9.6.2005. The complaint was filed on 9.6.05. It means the complaint was filed within one month i.e. well within limitation as provided under Section 142 of the Act. In this view of the matter, I hold that the learned Magistrate committed illegality in dismissing the complaint under Section 203 Cr.P.C. and the order of dismissal passed by him is liable to be set aside.

The revision stands allowed and the impugned order-dated 19.9.05 is hereby quashed. The court below shall pass fresh orders in accordance with law and in the light of the observations made above.




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