- (1.)PRESENT Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant herein - original accused to quash and set aside the impugned complaint being Criminal Case No.1249/2008 pending in the Court of learned Judicial Magistrate, First Class, Talaja, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
(2.)THAT respondent No.2 herein - original complainant has lodged the impugned complaint being Criminal Case No.1249/2008 in the Court of learned JMFC, Talaja against the applicant herein - original accused for the offence under Section 138 of the NI Act, for dishonor of the cheque dated 09.07.2008, which was returned with endorsement "referred to drawer". It is to be noted that the aforesaid cheque dated 09.07.2008 was returned with an endorsement "referred to drawer" on 12.07.2008 and the complainant served the notice upon the accused on 28.07.2008 informing the applicant with respect of the dishonor of the said cheque and calling upon the applicant to make payment of the cheque amount. That thereafter again the complainant deposited the said cheque and again the same came to be dishonored on 17.10.2008. That thereafter the complainant served another notice dated 14.11.2008 upon the applicant - accused calling upon the applicant - accused to make the payment of the cheque amount and thereafter the impugned complaint/criminal case has been filed by the complainant against the applicant - accused for the offence under Section 138 of the NI Act. That in the said complaint, learned Magistrate has directed to issue summons against the applicant for the offence under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the same, the applicant - accused has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
(3.)SHRI V.M. Pancholi, learned advocate appearing on behalf of the applicant - original accused has vehemently submitted that as such the impugned complaint filed by the complainant is barred by limitation. It is submitted that the cheque in question was deposited by the complainant which came to be dishonored by the Bank on 09.07.2008 with an endorsement "referred to drawer" and as such the complainant served a notice upon the accused on 28.07.2008 informing the applicant - accused with respect to dishonor of the aforesaid cheque and calling upon the applicant to make payment. However, instead of instituting the complaint on the said notice, the complainant again deposited the cheque which came to be dishonored on 17.10.2008 and again the applicant was served with the notice on date 14.11.2008. It is submitted that therefore, the cause of action to file the complaint on non -payment of the cheque in question arose when the complainant served the first notice on 28.07.2008 and considering the limitation from that date, the impugned complaint is barred by limitation. It is submitted that complaint under Section 142(b) of the NI Act has to be filed within a month from the date of immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires i.e. on completion of one month from the expiry of 15 days from the date of the receipt of the notice dated 28.07.2008.
[3.1] Shri Pancholi, learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Sadanandan Bhadran V/s. Madhavan Sunil Kumar, 1998 6 SCC 514as well as the decision of the Hon'ble Supreme Court in the case of Krishna Exports and Ors. V/s. Raju Das, 2004 13 SCC 498. Shri Pancholi, learned advocate appearing on behalf of the applicant has also relied upon the decision of the Hon'ble Supreme Court in the case of Tameshwar Vaishnav V/s. Ramvishal Gupta, 2010 2 SCC 329as well as the decision in the case of Prem Chand Vijay Kumar V/s. Yashpal Singh and Anr., 2005 4 SCC 417.

Relying upon above decisions and making above submissions, it is requested to allow the present Criminal Miscellaneous Application as the impugned complaint is barred by limitation.

Application is opposed by Shri Nirjar Desai, learned advocate appearing on behalf of the original complainant. Shri Desai, learned advocate has submitted that as such the first notice dated 28.07.2008 cannot be said to be a statutory notice under Section 138(b) of the NI Act. It is submitted that by giving notice dated 28.07.2008, the intention of the complainant was not to treat the same as statutory notice under Section 138(b) of the NI Act and it was only an intimation to the accused that the cheque in question is dishonored and informing the accused that if despite the said notice the cheque amount is not paid, the complainant would deposit the said cheque again. It is submitted that thereafter again the complainant redeposited the said cheque and thereafter when the same was dishonored again, the complainant served a statutory notice as contemplated under Section 138(b) of the NI Act on 14.11.2008 in which there is a specific reference to Section 138 of the NI Act and therefore, the notice dated 14.11.2008 only can be said to be a statutory notice under Section 138(b) of the NI Act and therefore, the limitation to file the complaint would start after completion of 15 days of receipt of notice dated 14.11.2008. It is submitted that therefore considering the starting point of limitation after completion of 15 days of the notice dated 14.11.2008 and after expiry of one month thereafter, the impugned complaint is within the period of limitation as provided under Section 142(b) of the NI Act. Therefore, it is requested to dismiss the present Criminal Miscellaneous Application. [4.1] Now, so far as the contention on behalf of the complainant that the earlier / first notice dated 28.07.2008 was not the statutory notice under Section 138(b) of the NI Act and the notice dated 14.11.2008 can only be said to be the statutory notice under Section 138(b) of the NI Act is concerned, Shri Pancholi, learned advocate appearing on behalf of the applicant has relied upon the decisions of the Hon'ble Supreme Court in the cases of Rajneesh Aggarwal V/s. Amit J. Bhalla, 2001 1 SCC 631; Central Bank of India and Anr. V/s. Saxons Farms and Ors., 1999 8 SCC 221; and K.R. Indira V/s. Dr. G. Adinarayana, 2003 8 SCC 300and has submitted that as such the notice dated 28.07.2008 can only be treated as a statutory notice under Section 138(b) of the NI Act and therefore, the complainant was required to file the complaint within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice dated 28.07.2008 by the drawer expires. Therefore, it is requested to allow the present application.

[4.2] Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has requested to pass appropriate order considering the facts and circumstances of the case.