JUDGMENT : B.P. Das, J. - The petitioner in this application u/s 482 of the Code of Criminal Procedure has prayed for quashing the order dated 18.7.1995 passed by the S.D.J.M., Sadar, Cuttack, in I.C.C. No. 90 of 1995 taking cognizance against him u/s 138 of the Negotiable Instruments Act, 1881 (in short "the Act"). It is worthwhile to mention here that the petitioner has approached this Court after his application dated 19.2.1999 praying for recalling the order taking cognizance was rejected by the learned S.D.J.M. by order dated 12.5.1999. 2. The brief facts leading to the present proceeding, as borne out from the complaint petition, are as follows : Tyre Corporation of India Ltd. is a Govt. of India Enterprise dealing with automobile tyres and tubes, having its registered office at Calcutta, through its various branch offices all over the country and one of such branch offices is situated at Cuttack. On the basis of the requisitions made by the petitioner, hereinafter called the accused, who deals with tyres and tubes in retail, the opposite party-company, hereinafter called the complainant, supplied tyres and tubes to a total sum of Rs. 80,949/- to the accused during the period from 29.11.1994 to 25.1.1995. After taking delivery of the goods as per the requisitions, the accused as against six invoices issued six account payee cheques of United Commercial Bank, College Square Branch, Cuttack, in favour of the complainant on 31.3.1995, on receipt of which the complainant produced the same in the Canara Bank, Main Branch, Choudhury Bazar, Cuttack, for collection of the amounts under the cheques. The Branch Manager of Canara Bank, however, intimated the complainant that the U. Co. Bank returned the aforesaid cheques with a memo stating "Funds insuffidient". Immediately thereafter, the complainant sent a registered letter dt. 6.4.1995 to the accused for payment of the amount due to the complainant in response to which the accused met the complainant, expressed his difficulty is not depositing the amount in his bank account and asked for time till 31.5.1995 promising to make the funds available in his bank account covering the cheque amount by 31.5.1995. Acting on such assurance of the accused, the complainant deposited the cheques again in the Canara Bank on 1.6.1995 for collection but on 3.6.1995 the Canara Bank intimated the complainant that the cheques sent for collection had been dishonoured by the U. Co. Acting on such assurance of the accused, the complainant deposited the cheques again in the Canara Bank on 1.6.1995 for collection but on 3.6.1995 the Canara Bank intimated the complainant that the cheques sent for collection had been dishonoured by the U. Co. Bank on 2.6.1995 due to insufficiency of funds. Thereafter the complainant issued a notice on 5.6.1995 to the accused which was received on 9.6.1995, intimating that the cheques issued by him had been dishonoured and requested him to. pay the amount by draft or cash within fifteen days. When there was no response from the accused, the complainant filed the present complaint petition on 10.7.1995 against the accused in the Court of the S.D.J.M., Sadar, Cuttack. 3. The learned S.D.J.M. after examining the complain u/s 200, Cr.P.C. by order dated 18.7.1995 took cognizance, u/s 138 of the Act and issued notice to the accused for his appearance. On receipt of notice, the accused entered his appearance and was released on bail. During the pendency of the complaint case, the accused made an application to recall the order taking cognizance against him raising several grounds, one of such being that the complaint was filed beyond the period of limitation as prescribed under the statute, but the same was rejected by the learned S.D.J.M. by order dated 12.5.1999. 4. Learned counsel for the accused-petitioner, Shri D. Dhal, submits that as the notice was first issued, on 6.4.1995 the cause of action arose within 15 days of receipt of the said demand notice dated 6.4.1995. As the complaint was filed on 10.7.1995, no offence could have been taken cognizance of as per Section 142 of the Act. The learned Magistrate without considering this aspect has taken cognizance against the petitioner and has also rejected the petition for recalling the order of cognizance. 5. Before going to the merits of the case, let me see the relevant provisions of Section 142 of the Act. "142. Cognizance of offences : Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) : (a) *** *** *** (b) such complaint made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. "142. Cognizance of offences : Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) : (a) *** *** *** (b) such complaint made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. (c) *** *** ***" Section 138 of the Act reads thus : "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 committee 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) *** *** *** (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 :*** *** *** The statutory provisions as enumerated above make it clear that the payee or the holder in due course of the cheque shall have to demand for payment of the said amount of money by giving a notice in writing to the drawer of such cheque, within fifteen days of the receipt of the information from the Bank regarding the return of the cheque as unpaid. So, undisputedly complaint is to be made within one month of the date of the cause of action and notice to the drawer shall go within fifteen days of receipt of the information from the Bank regarding return of the cheque as unpaid. 6. According to the learned counsel for the petitioner, notice having been issued on 6.4.1995, the cause of action arose within fifteen days of receipt of such notice and the complaint was filed beyond the statutory period. According to the learned counsel for the opposite party, notice in terms of Section 138 issued on 5.6.1995 was received on 9.6.1995. So, there was no delay in filing the complaint as the same was filed on 10.7.1995, 7. My attention is drawn in this regard to a decision in Sudanandan Bhadran v. Madhavan Sunil Kumar (1998) 15 OCR (SC) 372 dealing with a similar question and the Apex Court after summarising the case concluded in paragraph 10 as follows : "10. Now the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right and not cause of action-accrues in his favour. He may, therefore, without taking preemptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. He may, therefore, without taking preemptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. Put, once he gives a notice under Clause (b) of Section 138 he forfeits such right for, in case of failure of the drawer to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires." It is, therefore, clear that the holder of a cheque is entitled to present the cheque for any number of times as he pleases during the period of validity of the cheque but once a notice is given under proviso (b) to Section 138 of the Act, he forfeits his right to initiate prosecution in case of failure to initiate prosecution within one month. It may be noted here that notice means the notice only under proviso (b) to Section 138 of the Act. 8. The moot question that remains to be decided now is whether the letter given by the complainant on 6.4.1995 can be construed to be a notice in terms of the proviso (b) to Section 138 of the Act. It is worthwhile to clarify that proviso (b) to Section 138 speaks of a notice in writing to the drawer : Counsel for the opposite party-complainant has filed copy of the letter dated 6.4.1995 wherein the complainant requested the accused to pay the amount covered by the cheques issued by the accused, as the said cheques were bounced due to insufficiency of funds in the account. Basing on the aforesaid letter dated 6.4.1995, counsel for the petitioner-accused has argued that the complainant filed is barred by limitation in view of the provision of Section 142 of the Act. 9. Basing on the aforesaid letter dated 6.4.1995, counsel for the petitioner-accused has argued that the complainant filed is barred by limitation in view of the provision of Section 142 of the Act. 9. On a bare reading of the proviso (b) to Section 138 of the Act as well as the letter dated 6.4.1995 and the notice dated 5.6.1995 issued by the complainant, it is crystal clear that it is the notice dated 5.6.1995 which can only be construed to be a notice in terms of the proviso (b) to Section 138 of the Act, and not the letter dated 6.4.1995, as contended by the counsel for the petitioner. 10. Keeping in view the decision of the Apex Court cited above, in the present case since the valid notice issued on 5.6.1995 was duly received by the petitioner on 9.6.1995, the complaint having been filed on 10.7.1995, it was well within time. 11. In view of the discussions made above, this criminal misc. case has no merit and the same is accordingly dismissed. Final Result : Dismissed