2005 (5) TMI 692

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....ndent for dishonour of two cheques No. 615385 dated 20.7.2003 of Rs. 8,00,000/- and No. 615387 dated 20.9.2003 of Rs. 3,00,000/-. Both the cheques were dishonoured on account of insufficiency of funds. The return memo of the bank is dated 20.9.2003. The legal notice under Section 138 of Negotiable Instrument Act was issued on 15.10.2003 through Regd. Post as well as through speed post. The postal acknowledgment card shows service on 18.10.2003. The complainant pleaded that the notices were duly received but no payment in respect of the dishonoured cheques was made within 15 days of the notice as was required by the law as well as by the notice. The complaint is presented on 31.10.2003. The Magistrate took cognizance on 31.10.2003 itself and....

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....arly similar situation arose in the case of Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. reported as 2000 (2) JCC 615 (SC) . In this case the conviction by the trial court for an offence under Section 138 of Negotiable Instrument Act was set aside by the High Court holding that the complaint was pre-mature. The Supreme Court held that mere presentation at an early date need not necessarily render the complaint liable to be dismissed and that such a pre-mature presentation would not confer any right upon the accused to be absolved from the criminal liability for the offence committed. In that case although the complaint was presented pre-maturely the Magistrate did not take cognizance immediately on presentation of the complaint. T....

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....prosecute the accused for the offence? As said earlier the situation would have been entirely safe had the Magistrate waited for three more days before taking cognizance. 5. In my opinion, the action of the court or in other words the mistake of the M.M. cannot defeat the claim of the complainant. It cannot be lost sight of the fact that if the order of the Magistrate is set aside now no fresh complaint under Section 138 of Negotiable Instrument Act can be brought in view of the provisions of the limitation prescribed under Section 142 of the Negotiable Instrument Act. Therefore, the complainant, in that eventuality, will be denied the right to justice for no fault of his own. It has to be noticed that no prejudice of any kind has been c....