JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 04.01.1997, passed by the learned Additional Sessions Judge, Dibrugarh, in Criminal Appeal No. 18(4) of 1996, allowing the appeal and setting aside the judgment and order, dated 09.1996, passed by the learned Judicial Magistrate, 1st Class, Dibrugarh, in C.R. Case No. 2526c of 1990, convicting the accused opposite party under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act") and sentencing him to suffer imprisonment for 6 months and pay a fine of Rs. 5000/- (Rupees five thousand) and, in default, suffer imprisonment for a further period of 6 months. 2. Heard Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Mr. A. Jalan, learned Counsel, appearing for the complainant-Petitioner. None has appeared on behalf of the accused-opposite party. 3. The material facts giving rise to this revision may, in brief, be set out as follows: (i) A written complaint was filed, on 11.10.1993, in the Court of learned Judicial Magistrate, 1st Class, Dibrugarh, by the complainant-Petitioner, his case being, in brief, thus: The accused-opposite party took a loan of Rs. 40,000/- from the complainant-Petitioner on the strength of a hand-note (promissory note) executed by the accused-opposite party. When the complainant demanded repayment of the said loan amount, the accused issued a cheque for the said amount on 10.04.1993. The said cheque, on being presented by the complainant, was dishonoured by the bank concerned, on 10.04.1993, with the remark, "Insufficient fund". The complainant accordingly informed the accused about the cheque having been dishonoured by the bank. The accused advised the complainant to present the cheque during the last part of September, 1993; but when the cheque was so presented, the bank refused to honour the cheque with the remark,. "Insufficient Balance." The complainant, then, issued a notice in terms of Section 138 of the NI Act and the notice was served on the accused on 29.09.93. As even after receipt of the notice, the accused failed to make payment of the said amount to the complainant, the complainant lodged the complaint, as mentioned hereinbefore, on 11.10.93. (ii) In course of time, the accused faced the trial, which ended in his conviction and sentence, as mentioned hereinabove, was passed against him. As even after receipt of the notice, the accused failed to make payment of the said amount to the complainant, the complainant lodged the complaint, as mentioned hereinbefore, on 11.10.93. (ii) In course of time, the accused faced the trial, which ended in his conviction and sentence, as mentioned hereinabove, was passed against him. Aggrieved by the conviction and sentence so passed against him, the accused preferred to appeal, which was registered as Criminal Appeal No. 18(4) of 1996 aforementioned. Since the appeal was allowed as indicated hereinabove, the complainant has, now, approached this Court with the present revision. 4. From the perusal of the impugned judgment and order, it transpires that the accused-opposite party assailed the judgment and order of his conviction and sentence passed by the learned trial Court on two grounds, namely, (i) that no notice as required under the proviso (b) to Section 138 of the NI Act was served upon him and (ii) that the complaint was lodged on 11/10/93 i.e. after expiry off 13 days from the date of alleged receipt of the notice by the accused, though Section 138 makes it mandatory to give 15 days of clear notice to the drawer of the cheque before instituting complaint, and, hence, prosecution of the accused opposite party on the basis of such a complaint was not maintainable in law. Upon perusal of the materials on record and on hearing the learned Counsel for the parties, learned Additional Sessions Judge, with regard to the first ground so raised in the appeal, concluded to the effect that the notice, as envisaged under proviso (b) to Section 138 of the NI Act, did stood served on the accused; but as regards the second ground, which was raised in the appeal, the learned Judge took the view that as the complaint had been lodged before the expiry of 15 days from the date of service of the notice on the accused, the complaint was not maintainable and the prosecution launched against the accused was illegal. On the conclusion so reached, appeal was allowed. 5. While considering this revision, what needs to be noted, at the very out set, is that there is a difference though subtle, between the receipt of a complaint by a Magistrate under the Code of Criminal Procedure and taking of cognizance of the complainant by such a Magistrate. On the conclusion so reached, appeal was allowed. 5. While considering this revision, what needs to be noted, at the very out set, is that there is a difference though subtle, between the receipt of a complaint by a Magistrate under the Code of Criminal Procedure and taking of cognizance of the complainant by such a Magistrate. Mere filing of a complaint in a Court and passing of any order by the Magistrate on such a complaint does not amount to taking of cognizance. The expression "taking of cognizance of an offence", as envisaged by Section 190 Code of Criminal Procedure read with Section 200 Code of Criminal Procedure, would mean that the Magistrate has applied his mind to the facts contained in the complaint for the purpose of determining if there is a prima facie case to proceed against the accused. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the person, who is alleged to have committed the offence. Before it can be said that a Magistrate or Court has taken cognizance of an offence, it must be shown that the Magistrate has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complaint. Mere presentation of a complaint in the court does not mean that its cognizance has been taken by the Magistrate unless the record shows that he has applied his mind as indicated hereinbefore. What "taking cognizance of offence" mean and convey, has been explained by the Apex Court in Narsingh Das Tapadia v. Goverdan Das Partani and Anr. AIR 2000 SC 2946 , wherein drawing a distinction between the filing of a complaint and taking cognizance thereof by the Magistrate, the Court observed and held as follows: 8. "Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed.Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complaint. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence. (Narayandas Bhagwandas Madhavdas v. State of West Bengal AIR 1959 SC 1118 : (1959 Cri LJ 1368): and Gopal Das Sindhi v. State of Assam AIR 1961 SC 986 : (1961 (2) Cri L.J 39) 9. This Court in Nirmaljit Singh Hoon v. The State of West Bengal (1973) 2 SCC 753 : ( AIR 1972 SC 2639 ) observed Para 22 or AIR) Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complaint and his witness. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint; in, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment 'no sufficient ground for proceeding'. 10. Mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. 10. 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 complainant for filing later and its mere presentation at an earlier 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. Again this Court in D. Lakshminarayana Reddy v. V. Narayana Reddy AIR 1976 SC1672 : (1976 Cri LJ 1361) dealt with the issue and observed (Para 4): What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be institute, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search Warrant for the purpose of investigating, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. (Emphasis is added) 6. If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search Warrant for the purpose of investigating, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. (Emphasis is added) 6. Thus, a mere presentation of a complaint in the Court of Judicial Magistrate does not mean that the Magistrate has taken cognizance of the same unless the Magistrate has applied his mind for the purpose of proceeding under Section 200 Code of Criminal Procedure i.e. when the Magistrate applies his mind for the purpose of determining if any process is required to be issued against the offender in respect of the offence(s) complained of and/or when the Magistrate applies his mind for the purpose of determining if any offence is prima facie shown to have been committed by the offender. 7. In the case at hand, it is, no doubt, true that when the complaint was filed in the Court of the learned Judicial Magistrate on 11/10/1993, only 13 days had elapsed from the date of receipt of the notice, in question, by the accused, that is to say, the requisite period of 15 days from the date of receipt of the notice by the accused was not complete. Thus, the cause of action for institution of the complaint, as envisaged under Section 142(b) of the NI Act, had not arisen. In short, thus, the complaint was, undoubtedly, premature. In a situation such as this, the Court has two options either to return the complaint so that the same can be filed on expiry of the requisite period or keep the same pending awaiting maturity. 8. In short, thus, the complaint was, undoubtedly, premature. In a situation such as this, the Court has two options either to return the complaint so that the same can be filed on expiry of the requisite period or keep the same pending awaiting maturity. 8. In the present case, the learned Judicial Magistrate kept the said complaint vide order, dated 11/10/1993, fixed for recording of statement of the complainant under Section 200 Code of Criminal Procedure on 18.10.1993, and, on the prayer o f the complainant, the learned Magistrate vide order, dated 18.10.1993, fixed the said complaint for recording of the statement under Section 200 Code of Criminal Procedure on 09.11.1993 and it was on 09.11.1993 that the complainant was examined on oath, his statement was recorded and on finding that a prima facie case had been made out against the accused under Section 420 IPC and Section 138 of the N.I. Act, summons was directed to be issued. 9. From the bare reading of the orders, dated 11.10.93, 18.10.93 and 09.11.1993 aforementioned, it is abundantly clear that on 11.10.93, i.e., the date, when the complaint was presented in the Court, the learned Magistrate did not apply his mind to the facts presented in the complaint and it was only on 09.11.1993 that the learned Judicial Magistrate applied mind to the contents of the complaint and the statement of the complainant recorded under Section 200 Code of Criminal Procedure in order to ascertain if any prima facie case had been made out by the complainant for the purpose of seeking issuance of process against the accused and it was on that date i.e. on 09/11/1993 that the learned Judicial Magistrate can be legally said to have taken cognizance of the offence. Hence, the mere fact that the complaint was filed prematurely on 11/10/1993 did not mean that the learned Judicial Magistrate was divested of his powers to take cognizance of the same on 09.11.1993 i.e. on the day, which was long after the expiry of the requisite period of 15 days from the date of giving of the notice on the accused opposite party as contemplated in the proviso (b) to the Section 138 of the NI Act. 10. 10. What crystallizes from the above discussion is that on 09.11.1993, when the learned Magistrate took cognizance, the complaint already stood validly instituted and the prosecution launched against the accused on the basis of such a complaint could not have been held to be illegal. Learned appellate Judge appears to have equated the filing of the complaint with the taking of cognizance of the complaint, though both these factums are quite different. On 11.10.1993, the learned Judicial Magistrate merely fixed the complaint for recording of statement of the complainant and she had not, at that stage, applied her mind for the purpose of satisfying herself if prima facie case had been made out for issuance of process against the accused. The accused-opposite party, thus faced his trial on the basis of a validly instituted complaint and the trial, as indicated hereinabove, ended in his conviction and sentence. As the trial of the accused cannot be said to be on the basis of an illegally launched prosecution and as the only ground on which the conviction of the accused opposite party has been set aside is clearly on a misconceived and untenable proposition of law, the impugned judgment improper and incorrect in the face of the materials on record and the law relevant there to. Such an order shall, if allowed to stand good on record, cause serious miscarriage of justice and must, therefore, be set aside and quashed. 11. In the result and for the reasons discussed above, this revision succeeds, the impugned judgment and order shall accordingly set aside and quashed. 12. Send back the LCR. Revision allowed