JUDGMENT
Gopala Krishna Tamada, J.
1. This appeal is filed by the complainant in C.C No. 1495 of 1996 against the order dated 23.6.1998 passed by the learned XI Metropolitan Magistrate, Secunderabad in Crl. M.P No. 2166 of 1998 wherein he dismissed the complaint holding that the complaint is barred by limitation.
2. The facts that led to the filing of the complaint are as follows:
The 1st respondent herein issued a cheque in favour of the appellant/complainant and when the same was presented by the complainant in the bank, it was dishonored. Thereafter, after following the procedure as contemplated under Section 138 of the Act i.e. by serving a legal notice on the accused on 9.7.1996, he filed the complaint on 23.8.1996 which was numbered as C.C No. 1495 of 1996. The learned Magistrate dismissed the same in the impugned order on the ground that the complaint is barred by limitation.
3. Though the respondent received the notice from this Court, he has not chosen to put in his appearance.
4. Heard the learned Public Prosecutor.
5. The main thrust of the learned counsel for the appellant, Mr. C. Praveen Kumar is that admittedly the notice issued by the appellant was received by the respondent on 9.7.1996 and the complaint was filed on 23.8.1996 and according to him, it is within the period as envisaged under Section 138 read with Section 142 of the Act.
6. In order to appreciate the contention raised by both the counsel, it is necessary to have a look at the provisions of Section 138 and Section 142 of the Act. Section 138 of the Act is extracted hereunder:
“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 provision 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 date of 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 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 other liability” means a legally enforceable debt or other liability”.
7. Section 142 reads thus:
“Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973, —
(a) no court shall take cognizance of any offence punishable under section 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 clause ( c ) 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.”
8. Under Section 138 of the Act, the payee of a cheque is entitled to take legal action against the drawer of the cheque in the event of dishonour of the said cheques by the drawer. But before invoking the said provision, the payee of the said cheque must follow the procedure prescribed in the Proviso to Section 138. As per the Proviso, cheques must be presented by the payee to the bank for encashment within six months from the date on which it is drawn; in case of its dishonour by its drawer, then the payee shall make a demand to the drawer of the cheque for payment of the cheque amount by giving him a legal notice in writing within a period of 15 days from the date of receipt of information from the bank about the dishonour of the cheque; and if the drawer of the cheque fails to make payment of the said cheque amount within 15 days of the receipt of the said notice, then the payee of the cheque is entitled to invoke the provisions of Section 138 of the Act and lodge a complaint against the drawer of the cheque under the said provision. Section 142 of the Act prescribes limitation for filing the complaint under Section 138.According to Section 142, such a complaint has to be filed within a period of one month from the date on which the cause of action arises under Clause (c) of the Proviso to Section 138. The cause of action under Clause (c) of the Proviso to Section 138 arises on the expiry of the period of fifteen days stipulated thereunder. In other words, if the drawer of the cheque fails to make payment of the cheque amount within a period of fifteen days of receipt of legal notice by him, then the cause of action can be said to be arisen on the next day and the limitation starts to run from that date and the complaint has to be filed within one month thereafter.
9. While that being the legal position, coming to the case on hand, there is no dispute that the notice issued by the appellant was received by the respondent on 9.7.1996 and the respondent had time to make the payment within a period of 15 days ie., on or before 24.7.1996. It is only after the expiry of the said period of 15 days i.e. 24.7.1996, the cause of action arises as per clause (c) of the proviso to Section 138 of the Act i.e. on 25.7.1996. When the date 25.7.1996 is taken as the date on which the cause of action arose, according to clause (b) of Section 142, the complaint shall be made within one month thereafter i.e. on or before 24.8.1996. Normally, the date on which the cause of action arose is to be excluded in computing the period and so if 25.7.1996 is excluded for the purpose of limitation, then limitation starts to run from 26.7.1996 onwards and the complaint has to be filed within one month thereafter i.e. on or before 24.8.1996. But in view of the wording used under sub-section (b) of Section 142 that “such complaint is made within one month of the date on which the cause of action arises”, the limitation must be deemed to have started from and if 25.7.1996 is also included in computing the period of limitation, then the complaint has to be presented on or before 23.8.1996. In the instant case, admittedly, the complaint is filed on 23.8.1996 and hence it can safely be held that the complaint is within the period of limitation as envisaged under Section 142 of the Act. For the foregoing discussion, I am of the view that the Court below committed an error in holding that the complaint is barred by limitation. The order of the learned Magistrate is therefore liable to be set aside.
10. In the result, the Criminal Appeal is allowed and the order of the Court below is set aside. The matter is remitted back to the Court below and the learned XI Metropolitan Magistrate is hereby directed to restore C.C No. 1495 of 1996 to his file and dispose of the same in accordance with law.