ORDER

P.K. Tripathi, J. - Heard. Perused the written note of submission and the impugned order.

2. Opposite party lodged a complaint case vide ICC No.5 of 1995, against the petitioner for the offence under. Section 138 of the Negotiable Instruments Act, 1881 (in short. the 'Act') alleging therein that a cheque for Rs. 5,000/- issued by the petitioner in favour of the opposite party with a view to discharge his liability was returned by the Bank without payment on 8-121994 with the endorsement of 'insufficient funds'. On 21-12-1994, in accordance with Section 138 proviso (b) of the Act opposite party sent a notice. On 2812-1994, petitioner refused to receive the notice. Hence. On 3-1-1995 opposite party filed the complaint petition in the Court of-S.D.J.M., Bhubaneswar alleging commission of the offence under Section 138 of the Act. The S.D.J.M. took cognizance and issued process under Section 204 of the Code of Crimina1 Procedure, 1973 (in short 'the Code'). After appearing in that case petitioner challenged the order of cognizance and prayed to quash it on the ground that complaint case was filed before expiry of 15 days from the date of refusal of notice and therefore in view of the provisions in Sections 138 and 142 of the Act, the complaint case was premature and not maintainable,

3. Learned S.D.J.M. rejected the aforesaid contention on the ground that refusal to receive notice cannot be treated as service of notice and that the provisions of law in the act is silent as to how the period of limitation is to be computed in case of refusal to receive notice. According to learned S.D.J.M, since the petitioner had not paid the amount due in spite of dishonour of the cheque and even after expiry of 15 days time from the date of offer of the notice on him, hence the complaint case should continue.

4. Petitioner challenges legality and correctness of the said order. He reiterates the self-same point. Learned counsel appearing for the opposite party supports the finings in the impugned order.

5. Chapter XVII in the Act containing Sections 138 to 142 was inserted by Act 66 of 1988 which came into force on 23-3-1989. Special provision was made to guard against payment of fake cheque or improper cheque issued with a view to discharge of debt or other liability. When such cheating is made it has been made punishable under Section 138. To appreciate the point in proper manner, relevant provisions i.e. Sections 138 and 142 of the Act are quoted herewith:

"138, Dishonour of cheque for insufficiency, etc. of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part of any debt or other liability is returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both:

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 ate 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 fifteen 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 indue course of the cheque within fifteen days of the receipt of the said notice.

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

142. Cognizance of offences Not withstanding anything contained in the Code of Criminal Procedure. 1973 (2 of 1974) -

(a) no Court shall take cognizable of any offence punishable under Section 138 except upon a complaint in writing made by the payee or as to case may be the holder induc course of the cheque:

(b) such complaint is made within one month of the date on which the cause of action arises under Clause of the proviso to Section 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 Section 138".

It is clearly readable from the above quoted provisions that cognizance of an offence under Section 138 can be taken if (1) complaint is made in writing by the payee or the 'holder in due course' of the cheque; (ii) such 'complaint is made within one month of the date of which the cause of action as contemplated under Clause (c) of the proviso to Section 138 arises and (iii) a Metropolitan Magistrate or a Judicial Magistrate first class shall try of offence punishable under Section 138. On perusal of Section 138 proviso it appears that if the cheque is presented within six months from the date of issue or within it period of validity whichever period is earlier and the cheque bounces and a demand for the payment of the said amount is made by giving a notice in writing to the drawer of cheque within 15 days of the receipt of information from the bank about such bouncing of the cheque and after receipt of such notice if the drawer of such cheque fails to make payment of the involved amount to the payee or holder of the cheque as the case may be within 15 days of the receipt of the said notice then the cause of action as contemplated in Section 142 (c) will arise for lodging a complaint for the offence punishable under Section 138 of the Act.

6. In this case notice was not received but refused to be received by the petitioner on 22-12-1994. But the complaint was filed on 3-1-1995 i.e. on the 13th day from date of refusal to receive notice. Contention of the opposite party is that since the petitioner refused to receive the notice period of 15 days provided in Clause (c) to proviso of Section 138 is not applicable. The aforesaid argument is not acceptable being illogical and irrational. When the statute provides for a clear 15 days opportunity to the drawer, it cannot be curtailed on the ground of refusal of notice. A refusal of notice in such a case amounts to acceptance of notice. (See the case of K. Narasimhiah v. H.C. Singri Gowda and others1. When the opposite party did not allow 15 days time from the date of refusal of notice, it cannot be said that he had cause of action in accordance with Clause (c) of proviso to Section 138. Under such circumstances the complainant petitioner was filed prematurely. In such matter similar view has been taken by Karnataka and Punjab & Haryana High Court in the case of Ashok Hegde v. Jathin v Allawan2 and Ashok Verma v. Ritesh Agro Pvt. Ltd.3

The logic advanced by learned S.D.J.M. and the argument advanced by opposite party that the petitioner has not made the payment is of no consequence and for that reason departure cannot be made from the statutory limitation and legal provisions.

7. It is thus held that a complaint under Section 138 can be filed within a month only after expiry of 15 days time from the date of receipt of the notice in accordance with Clause (b) of the proviso to Section 138 of the Act and in case of refusal to receive such notice the date of such refusal shall be treated as the date of receipt of such notice. In that case the period of 15 days is to be computed from the date of refusal. If the complaint case is filed before expiry of the period of 15 days as provide in Clause (c) to the proviso of Section 138 then cognizance of the offence cannot be taken in view of the provision in Clause (b) of section 142. That being the position of law the complaint case vide ICC No.5 of 1995 cannot proceed and accordingly the order of cognizance is quashed and consequentially as prayed for the complaint is also quashed.

The Criminal misc. case is accordingly allowed.

Petition allowed.

1. A.I.R. 1966 S.C. 330.

2. 1997 Crl. L.J. 3691.

3. 1995 (1) Bank C.L.R. 103.