TMI Blog2017 (5) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... onvicted and sentenced to undergo simple imprisonment for one month and to pay a sum of ₹ 1,00,000/- as compensation under Section 138 of the Act, is set-aside. - Cr. Revision No. 236 of 2016 - - - Dated:- 17-5-2017 - Tarlok Singh Chauhan, J. For the Petitioner : Mr. K. B. Khajuria, Advocate For the Respondent : Mr. V.S. Rathore, Advocate ORDER Tarlok Singh Chauhan, Judge (Oral). This revision is directed against the judgment passed by learned Additional Sessions Judge, Shimla, Camp at Rohru on 18.6.2016 in Criminal Appeal No. 11-R/10 of 2014 whereby he upheld the judgment passed by learned Judicial Magistrate 1st Class, Court No. II, Rohru, District Shimla, H.P. on 23.9.2013/21.10.2013 in Case No. 26-3 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m which may be extended to one year (w.e.f. 6.2.2003). 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 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, 20 [within thirty 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act. 6. The aforesaid exposition of law makes it evidently clear that the complaint under the Act filed before the expiry of 15 days is pre-mature and cannot be treated as a legally constituted complaint in the eyes of law. Therefore, the proceedings initiated on the basis of such complaint are liable to be quashed and set-aside. 7. Resultantly, there is merit in this petition and the same is accordingly allowed and the judgment dated 18.6.2016 passed by learned Additional Sessions Judge, Shimla, Camp at Rohru in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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