JUDGMENT
A.C. Goyal, J.
1. The facts giving rise to this petition under Section 482, Cr.P.C. are that a complaint under Section 138, Negotiable Instruments Act, 1881 (in short ‘the Act of 1881’) was filed on behalf of the complainant-respondent in the Court of learned Judicial Magistrate, Kishangarhbas, District Alwar on 17.7.1998 with the averments that two cheques respectively dated 18.5.1998 of Rs. 70,192/- and dated 22.5.1998 of Rs. 66,800/- were issued by the accused-petitioner in favour of the complainant-respondent. The cheque of Rs. 66,800/- was honoured while other cheque was returned unpaid for short of fund. Thereafter, the complainant sent notice dated 23.6.1998 by registered post, which was received by the accused, but no payment was paid.
2. The learned Magistrate after inquiry took cognizance vide order dated 15.9.1998
under Section 138 of the Act, 1881. The accused appeared before the Trial Court on 13.8.1999 and on 21.3.2001, the substance of the offence was read over to the accused who pleaded not guilty and the case was fixed for evidence of the complainant. Thereafter, an application dated 2.6.2001 was moved on behalf of the accused petitioner making a prayer that no cause of action arose and the complaint was filed before expiry of 15 days after receipt of the notice, hence, the complaint should be dismissed. The learned Magistrate dismissed this application vide order dated 23.7.2001. Hence, this petition.
3. Learned Counsel for the petitioner contended that it was necessary to make averments in the complaint itself that on what date the notice was received by the accused and the payment was not made within 15 days of the receipt of the notice according to Sub-clauses (b) and (c) of Section 138 of the Act. Learned Counsel also referred Sub-section (b)of Section 142 of the Act, 1881 and contended that Magistrate was not competent to take cognizance as no compliance of Clause (c) of the proviso to Section 138 of the Act, 1881 was made. Learned Counsel for the complainant-respondent relying upon Narsingh Das Tapadia v. Goverdhan Das Partani and Anr., VI (2000) SLT 523=I (2001) BC 113 (SC)=AIR 2000 SC 2946, contended that the cognizance was taken by the Magistrate after expiry of more than 15 days after receipt of the notice and, therefore, there was no illegality in taking the cognizance.
4. I have considered the rival submissions. No doubt these relevant facts are not stated in the complaint but notice dated 23.6.1998 Ex. 11 is accompanied by acknowledgement Ex. 12 and on bare perusal of this acknowledgement, it prima facie appears that the date of receipt of the notice is 17.7.1998 and the complaint under Section 138 of the Act, 1881 was also filed on the same day, but, cognizance was taken on 15.9.1998 and, thus, this cognizance is not bad in law in view of the judgment of the Hon’ble Apex Court (supra), wherein it has been held that mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complaint for filing later and its mere presentation at an early date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. The failure of drawer of cheque to make payment of the cheque within 15 days of receipt of notice of the payee enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under Clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed and if filed not disclosing the cause of action in terms of Clause (c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant. Taking cognizance of an offence by the Court has to be distinguished from the filing of the complaint by the complainant. Thus, in view of the verdict of Hon’ble the Apex Court, though the complaint was premature but the cognizance was taken after expiry of 15 days of the receipt of the notice. Therefore, this petition has no merit and is hereby dismissed. The record of the Trial Court be sent back within one week from today with copy of this order.