JUDGMENT Hon’ble R.K. Rastogi, J.—This is an application under Section 482, Cr.P.C. to quash the proceedings of complaint case No. 6424 of 2006, Rajani Traders v. Muzahir Hussain under Section 138 Negotiable Instruments Act, P.S. Banna Devi District Aligarh and the summoning order dated 7.11.2006 passed by the C.J.M. Aligarh in the above complaint. 2. The facts giving rise to this application under Section 482, Cr.P.C. are that the complainant opposite party No. 2 had filed the aforesaid complaint against the accused applicant in the Court of C.J.M., Aligarh on 2.9.2006 with these allegations that the accused had purchased cloth from the shop of the complainant opposite party No. 2 on 31.3.2006. In respect of the above transaction, bill No. 2742 had been issued to the accused applicant; and for payment of that bill, the accused applicant issued Cheque No. 868315 dated 29.5.2006 for Rs. 26,000/- drawn on Allanabad Bank, Aligarh Muslim University Branch, Aligarh, and another Cheque No. 868316 dated 29.7.2006 for Rs. 9808/- drawn on the same Bank. The complainant deposited the first Cheque in his Account in the Bank of India but the Cheque was returned back for insufficiency of funds as per information received by’ him from the Bank of India on 15.6.06. The second Cheque was also deposited in the Bank but it was also returned back on 11.8.06 with the same information . Then he gave a notice to the accused on 12.8,06 by registered post requiring the accused to pay the amount by 15.8.06 alongwith 24% interest per annum. It was further provided that in case of failure to pay the amount, the complainant shall file a case under Section 420, I.P.C. The notice was received by the accused applicant, and he orally told the complainant that sufficient amount has been deposited in his Account and so the Cheque should be again sent for payment. Then , the complainant again sent the first Cheque for payment on 22.8.06 but it was again returned back on 25.8.06 on the same ground of insufficiency of funds. Then the complainant again issued a notice to the accused applicant on 26.8.2006 mentioning the fact of dishonour of both the Cheques and asked him to pay the entire amount of both the Cheques alongwith 24% interest with late fee charges and the charges of dishonour of the Cheques. Then the complainant again issued a notice to the accused applicant on 26.8.2006 mentioning the fact of dishonour of both the Cheques and asked him to pay the entire amount of both the Cheques alongwith 24% interest with late fee charges and the charges of dishonour of the Cheques. This notice was sent by registered post as well as under Certificate of Posting. The registered notice was received by the accused but he did not pay any amount. The accused had also given in writing on 31.3.2006 that he had received bill No. 2742 for Rs. 35,808/- from the complainant and that he was making payment of above amount through the aforesaid two Cheques, referred to above. Thus, he had apparently committed fraud with the complainant, and therefore it was prayed that action should be taken against him under Section 138 of Negotiable Instruments Act and under Section 420, I.P.C. 3. The complainant examined himself before the Magistrate under Section 200, Cr.P.C. and also filed copy of bill No. 2742, the aforesaid two Cheques, copy of the notice and the receipt of its registration. 4. After perusal of the record, the learned Magistrate was of the view that prima facie a case under Section 138 of Negotiable Instruments Act appeared against the accused. He, therefore, passed the order summoning the accused applicant for the above offence. Aggrieved with that order, the accused filed this application under Section 482, Cr.P.C. 5. The applicant, in his affidavit, filed in support of the application under Section 482, Cr.P.C., denied the above transaction of purchase of cloth from the shop of the complainant and alleged that the accused applicant had taken loan of Rs. 15,000/- from the Capital Instalment Shop No. 22 Rasalganj, opposite Malakhan Singh Hospital, Aligarh, and the opposite party No. 2 is owner of the aforesaid Finance Company; the applicant had given 10 post dated cheques No. 868311 to 868320 to the complainant, as security, for repayment of the above amount of loan with this understanding that when he shall repay the entire amount of loan in cash to the complainant, those post dated cheques shall be returned to him. The applicant paid the aforesaid loan amount to the opposite party No. 2 and only a sum of Rs. 4,334/- was due upon the applicant. The applicant paid the aforesaid loan amount to the opposite party No. 2 and only a sum of Rs. 4,334/- was due upon the applicant. Then the applicant asked the opposite party No. 2 to return the aforesaid Cheques to him, but he refused to return the same and presented Cheques No. 868315 and 868316 entering the name of his other Firm Rajani Traders in the column of payee in those cheques, hence the provision of Section 138 of the Negotiable Instruments Act is not applicable to the present case. It is applicable only in cases of dishonour of cheques for insufficiency of funds. The complainant has not complied with the requirement of Section 142 (b) of Negotiable Instruments Act because he had not sent any notice within a period of one month from the date of notice of dishonour of the first Cheque. In the present case, the cheques were allegedly returned back on 15.6.2006 and 11.8.2006 and the notices were sent on 12.8.2006 and 26.8.2006 but no date of receipt of notice has been mentioned in the complaint The complaint was filed on 2.9.2006 and so it was barred and the impugned summoning order passed by the Magistrate is illegal. The applicant has filed copies of the notices dated 12.8.2006 and 26.8.2006 as Annexures 1 and 2 of the affidavit. 6. The complainant has filed a counter affidavit in which he has alleged that actually the accused applicant had purchased cloth worth Rs. 35,808/- from Rajani Traders and in respect of price of that cloth, he had issued two disputed Cheques of Rs. 26,000/- and 9,808/- and the allegations to the contrary in the affidavit of the applicant are false. It was further asserted that these cheques were presented on 29.5.2006 and 29.7.2006 respectively, and both these cheques were dishonoured and information to this effect was received on 15.6.2006 and 11.8.2006 respectively and then a notice was sent to the accused on 12.8.2006 but on his request the first cheque of Rs. 26,000/- was again sent to the Bank for payment but it was again received back without payment on 25.8.2006. Then another notice was sent to the accused on 26.8.2006 by speed post asking the accused to pay the amount alongwith 24% interest. It was also alleged that the complainant is not proprietor of M/s Capital Instalment but it was owned by Mrs. Then another notice was sent to the accused on 26.8.2006 by speed post asking the accused to pay the amount alongwith 24% interest. It was also alleged that the complainant is not proprietor of M/s Capital Instalment but it was owned by Mrs. Manjit Bagga who is its proprietor and the complainant has got no concern with this Firm. 7. No rejoinder affidavit has been filed by the applicant in reply to the counter affidavit of opposite party No. 2. 8. I have heard the learned Counsel for the parties and have perused the record. 9. The first plea taken in the affidavit filed in support of the application under Section 482, Cr.P.C. is that the accused applicant had taken loan of Rs. 15,000/- from the Capital Instalment Shop No. 22 Rasal Ganj owned by opposite party No. 2 and at that time he had given 10 post dated Cheques No. 868311 to 868320 to the complainant opposite party No. 2 as security for repayment of the loan with this understanding that when the entire amount of loan is repaid in cash to the complainant, these post dated cheques shall be returned to him. It has further been stated that the applicant paid the entire loan amount to opposite party No. 2 and only a sum of Rs. 4,334/- was due upon the applicant. Then he said to opposite party No. 2 to return the aforesaid cheques but the complainant opposite party No. 2 refused to do so, and he presented Cheques No. 868315 and 1868316 entering in the column of ‘payee’ in those cheques the name of his other firm namely Rajani Traders, and so the provisions of Section 138 of the Negotiable Instruments Act are not applicable to the present case. 10. The complainant opposite party No. 2 has denied the above story in his counter affidavit. He has pleaded that the Capital Instalment Shop is not owned by him but by Mrs. Manjeet Bagga. He has further pleaded that actually he had sold cloth worth Rs. 35,808/- on credit to the accused applicant and Bill No. 2742 was also issued to the accused applicant, and the accused applicant had admitted receipt of the Bill and had given this fact in writing on 31.3.2006 and he had issued two post dated cheques towards payment of the above amount as Cheque No. 868315 dated 29.5.2006 (for Rs. 35,808/- on credit to the accused applicant and Bill No. 2742 was also issued to the accused applicant, and the accused applicant had admitted receipt of the Bill and had given this fact in writing on 31.3.2006 and he had issued two post dated cheques towards payment of the above amount as Cheque No. 868315 dated 29.5.2006 (for Rs. 26,000/-) and Cheque No. 868316 dated 29.7.2006 (for Rs. 9,808/-) in favour of his firm Rajani Traders. 11. It is to be seen that the above plea taken by the accused applicant is a factual plea which can be substantiated by evidence at the appropriate stage of trial and it cannot be adjudicated in this application under Section 482, Cr.P.C., Hence, no finding is being recorded on this plea. 12. The second plea taken by the accused applicant is that information of dishonour of the cheque dated 29.5.06 was received by the complainant on 15.6.06 and the information of dishonour of the Cheque dated 29.7.06 was received by him on 11.8.06. The learned Counsel for the applicant submitted that under Proviso (b) of Section 138 of the Act, the notice must have been given to the accused applicant within a period of 30 days from receipt of the information regarding dishonour of the cheque. He submitted that in the present case the notice of dishonour of Cheque No. 868315 was received by the complainant on 15.6.06 and since he did not send the notice to the applicant within a period of 30 days from this date, the complaint in respect of this cheque was time barred. 13. I do not find any force in the above contention of the applicant. The legal position is that the payee has got a right to send the cheque to the Bank for a number of times he pleases during the period of its validity. In the present case, the Cheque No. 868315 bears the date 29.5.06 which was valid for the period up to 28.11.06 and during this period the complainant could send it to the Bank a number of times to receive its payment. The limitation period for sending the notice would start only from the date of receipt of last information regarding non-payment of cheque. The limitation period for sending the notice would start only from the date of receipt of last information regarding non-payment of cheque. The position would have been otherwise if on receipt of first information of dishonour on 15.6.06, the complainant had issued the notice under Proviso (b) of Section 138 of the Negotiable Instruments Act because once the notice is issued after dishonour of cheque, the legal process constituting the offence under Section 138 of the Act is set into motion, and then the payee of the cheque cannot get any fresh period of limitation by sending the cheque again for payment. But before issue of the notice under the proviso (b), the cheque can be sent any number of times to the Bank for payment during the period of its validity, and the limitation period shall start to run from the date of last dishonour. My above view is supported by the following Rulings : (i) S.K.D. Lakshmanan Fireworks Industries v. Sivarama Krishnan, 1995 Cri LJ 1384 (Ker)(FB). (ii) Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998 Cri LJ 4066 (SC) (iii) Shailesh Kumar Agrawal v. State of U.P., 2000 Cr. L.J. (All) 14. The position in the present case is that Cheque No. 868315 dated 29.5.06 for Rs. 26,000/- was sent to the Bank for payment and it was received back without payment on 15.6.06 for insufficiency of funds. No notice as required under Proviso (b) of Section 138 was given at that time and the cheque dated 29.7.06 for Rs. 9808/- was sent to the Bank for payment which was also received back without payment for insufficiency of funds on 11.8.2006. Then a composite notice was sent on 12.8.06 in respect of dishonour of both the cheques. This notice was time barred in respect of the first cheque dated 29.5.2006 but within time in respect of second cheque dated 29.7.06. The accused, however, at that time made an oral request to the complainant to represent the cheque to the Bank assuring that the payment shall be made this time (as per complaint allegation which alone are to be considered at this stage) and when the first cheque dated 29.5.2006 was resent to the Bank for payment on the request of the accused and it was again returned back without payment for insufficiency of funds, fresh limitation would start from the date of this subsequent return. It may be mentioned that the cheque dated 29.7.06 was returned back without payment on 11.8.06 and the cheque dated 29.5.06 resent to the Bank for payment on request of the accused was received back on 25.8.06. Thus the second notice dated 26.8.06 having been issued within a period of 15 days from the date of receiving back both the cheques which are 11.8.06 and 25.8.06 respectively) was within limitation. My above view is supported by the ruling of the Delhi High Court in Lok Housing & Construction Ltd. v. DCM Daewoo Motors Ltd., 2002 (4) Crimes 267 in which relying upon similar request of the drawer of the cheque, it was held that it amounted to implied waiver of the notice, and he was estopped from pleading otherwise. 15. The third plea taken by the accused applicant is that it has not been mentioned in the complaint as to on which date the notice dated 26.8.2006 was served upon the accused applicant and so the complaint was defective. There is no force in this plea also. The law is that the complaint under Section 138 of Negotiable Instruments Act shall not be maintainable when the fact of service of notice upon the accused has not been pleaded in the complaint. In the present case, the position is that it has been specifically pleaded in para 3 of the complaint that the notice was received by the accused. “Lekin registered notice dinank 26.8.2006 prapt karne ke ba vjood bhi abhiukt ne ukt dhanrashi mai byaj va anya kharcha ke aropak ko nahi di” 16. Thus, the fact of receipt of the notice by the accused was specifically pleaded in the complaint. The only omission is that it has not been specifically mentioned as to on which date the notice was received by the accused applicant. It appears from perusal of the certified copy of the summoning order passed by the learned Magistrate dated 7.11.2006 (Annexure 4 of the affidavit filed in support of the application under Section 482, Cr.P.C.) that the applicant had filed the postal receipt of the registration of the notice. Now, if the postal acknowledgement had not been received by the complainant and so if the actual date of service of the notice could not be mentioned in the complaint, that would not render the complaint not maintainable. Now, if the postal acknowledgement had not been received by the complainant and so if the actual date of service of the notice could not be mentioned in the complaint, that would not render the complaint not maintainable. It has been laid by Andhra Pradesh High Court in Satyanarayana Rao (SBV) v. Venkateshwar Rao, (A) (1997) 88 Comp Cas 469 that the starting point of limitation is to be counted from the date on which the accused receives the notice or the date on which the accused could receive the notice which could even be the seventh day, and as such the presumption would be that the accused would have received the notice by the end of seventh day from the date on which it was booked in the post office for being sent to the accused applicant, until and unless the accused proves by cogent evidence that he did not receive the notice which is a question of fact. As such when the notice has been sent by registered post, the mere omission to mention the date of its service upon the accused for want of knowledge on that point would not render the complaint to be not maintainable. It could be presumed that the accused must have received notice by the end of seventh day of registration of the notice and so there is no legal defect in the complaint. 17. The fourth contention of learned Counsel for accused is that in the notice dated 12.8.06, the time upto 15.8.06 was given for making payment and in the notice dated 26.8.06 no specific time was mentioned within which the payment was to be made and so both these notices are invalid. There is no force in this plea also. The statutory time of 15 days has been provided in Clause (c) of the proviso to Section 138 of the Act and if any other period is mentioned in the notice or no period is mentioned in the notice, the notice shall not be invalid on that account. There is no force in this plea also. The statutory time of 15 days has been provided in Clause (c) of the proviso to Section 138 of the Act and if any other period is mentioned in the notice or no period is mentioned in the notice, the notice shall not be invalid on that account. It has been held in the cases of Manikumar (P.V.R.S.) v Krishan Reddy, 1999 Cri LJ 2010 (Mad); Ravinder Kumar Mahajan v. Sohanlal, 1998 Cri LJ 3273 (P & H); K. Murlidhar Rao v. State, 1998 Cri LJ 748 (AP); Satyavan Chaplot v. M. Rajendra, 1998 Cri LJ 2309 (Raj) that once the cheque bounces, the cause of action will be completed when the drawer of the cheque fails to make payment within fifteen days of the receipt of notice contemplated. The offence shall be deemed to have been committed only from the date when notice period expired. However, mentioning of 15 days time for payment is not necessary in the notice, as it is not contemplated in Section 138 the of Act. Therefore, the mentioning of the period for making payment in the notice as fifteen days or less by the payee does not matter. The complainant gets the right of approaching the Court only after fifteen days. Therefore, even if the complainant gave a notice demanding payment of the cheque amount within seven days that will not invalidate the notice under Section 138 (b) of the Act. 18. The fifth point stressed by learned Counsel for the applicant was that the notice was given by the complainant on 26.8.06 and the complaint was filed by him on 2.9.06. He submitted that the time of 15 days for payment has been provided to the accused in clause (c) of the proviso (b) under Section 138 and since in the present case the complaint has been filed within the period of one week from the date of dispatch of the notice, the complaint is premature and the same is liable to be dismissed on this account alone. There is no force in this plea also. There is no force in this plea also. In Bhanwar Lal v. State, 1999 Cri LJ 949 (Raj) it has been held that under the Act, an offence has been committed prima facie when the sum demanded was not paid within the period of 15 days after service of the notice, and where the complaint has been filed before the expiry of 15 days from the date of service of the demand notice and the sum is not paid even after 15 days, the Magistrate was held authorised to take cognizance of such a complaint. 19. It has been held by the Hon’ble Supreme Court in Narsingh Das Tapadia v. Goverdhan Das Partani, AIR 2000 SC 2946 that no period is prescribed before which the complaint cannot be filed and if it is filed not disclosing the cause of action in terms of clause (c) of the proviso to Section 138, the Court may not take its cognizance till the time the cause of action arises to the complainant. The Court stated that mere presentation of the complaint in the Court cannot be held to mean that its cognizance has 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 him self from the criminal liability for the offence committed. 20. The above view was followed by this Court also in the case of Hem Lata Gupta v. State, 2000 Cri LJ 1522 (All) in which it was held that the bar of expiry of 15 days is only for taking cognizance. It is to be seen that in the present case, the cognizance has been taken by the Magistrate on 7.11.2006 when he passed the summoning order. It is to be seen that in the present case, the cognizance has been taken by the Magistrate on 7.11.2006 when he passed the summoning order. It is noteworthy that it is nowhere the case of the accused applicant that he had made payment to the complainant within the period of 15 days from the date of receipt of the notice; as such even if the complaint was filed within the period of 15 days from date of the notice, the same shall not be treated to be invalid as the Magistrate took cognizance on 7.11.06 after expiry of the statutory period of 15 days from the date of service of the notice. As such the complaint cannot be treated to be defective on this account also. 21. The sixth plea taken by the learned Counsel for the accused is that the joint complaint, in respect of dishonour of two cheques, was not maintainable. There is no force in this plea also. It is to be seen that under Section 219, Cr. P.C. if the offences are of the same kind and punishable with the same punishment under the same section, the Court can try three offences of the same kind committed within a year together. In the present case, both the cheques were issued with a gap of two months only and they were dishonoured also in the same year. Hence, there is no legal bar to joint trial of the case in respect of both these dishonoured cheques by means of the single complaint. The objection of the accused in this regard also is not maintainable. 22. The position in this way is that the application under Section 482, Cr.P.C. moved by the accused applicant has got no force. It is liable to be dismissed. It is accordingly dismissed. ————