ORDER 1. This revision is for impugning the order dated 1st March, 2004, passed by Session Judge, Vidisha, in Criminal Revision No.89/03, whereby the learned Judge has modified the order dated 24th April, 2003 passed by Additional Chief Judicial Magistrate, Vidisha in Criminal Case No.444/02, framing of the charge against the respondents for the offence punishable under section 420 of IPC only, while the complaint was tiled for the offence punishable under section 138 of the Negotiable Instruments Act, 1981 (hereinafter referred to as "the Act") along with sections 406 and 420 of IPC. While modifying the order, the learned Judge has observed that no charge under section 420 of IPC and 138 of the Act is made out and only a charge under section 406 of IPC is made out. 2. (A) The facts which are not disputed by the parties in brief are, that one complaint dated 28.4.1993 has been filed by the petitioner against the respondents for the offence punishable under section 420 read with section 406/34 of IPC and also under section 138 of the Act. It is alleged in the complaint that the petitioner is having a legal plant along with machineries fitted thereon, for production of liquor. Vide agreement dated 14.5.1992, this plant was given to the respondents for ten years on the terms, that for first three months Rs.33,333/- per month, thereafter upto five years Rs.65,000/- per month and subsequent to that Rs. One lac per month was to be paid by the respondents to the petitioner. The aforesaid amount was to be paid in advance upto 10th of every month and in default of payment, Rs.500/- per day was to be paid as penalty. From the very beginning the petitioner entered into this contract having intention of dishonesty and cheating in their mind. Initially the amount for first three months was paid, thereafter they avoided making payment. Some allegations have been mentioned in paragraph 5 of the complaint with regard to an offence under section 406 of IPC which are now not relevant to be reproduced, as with regard to that offence, a separate order has been passed by this Court today in MCrC No.4414/2004. 2(B). It is further alleged in the complainant, that when demand was made, one cheque amounting to Rs. 2(B). It is further alleged in the complainant, that when demand was made, one cheque amounting to Rs. Two lacs was drawn by the respondent No.1 on behalf of the respondents in favour of the complainant, which was dishonoured. On 5.1.1993, on the basis of the oral information received by him, the petitioner sent a notice to the respondents informing that the amount of cheque is to be paid. Thereafter, the respondent No.1 orally informed the petitioner that within a few days he will deposit the amount in the bank, but despite that the bank did not pay the amount and informed in writing about dishonour of the cheque on 26.3.1993. Thereafter, another notice was issued by the petitioner on 3.4.1993 which was neither replied nor the payment was made. On the basis of these averments after recording evidence at before charge stage, the learned Magistrate framed charge on 24.4.2003 under section 420 of IPC only and negated framing of the charge under section 406 of IPC and under section 138 of the Act. 2(C). Feeling aggrieved by the aforesaid order of the learned Magistrate, the respondents filed Criminal Revision No.89/03 praying therein that charge under section 420 of IPC is not made out. Vide impugned order dated 1.3.2004 passed by learned Sessions Judge, Vidisha, it has been observed that only charge under section 406 of IPC is made out and no charge under section 138 of the Act and 420 of IPC is made out. Feeling aggrieved by that order of the learned Judge dated 1.3.2004, the present Criminal Revision No.253/04 has been filed by the petitioner praying therein that charge under section 420 of IPC and under section 138 of the Act also ought to have been framed. 3. Parties have not argued anything with regard to the offence under section 420 of IPC, nor the same has been pressed during arguments on behalf of the petitioner. With regard to offence under section 138 of the Act, it is only submitted by Shri Kaushik for the petitioner, that as per paragraph 8 of the complaint, notice issued on 5.1.1993 was without receiving any written information from the bank. It was issued only on an oral information. With regard to offence under section 138 of the Act, it is only submitted by Shri Kaushik for the petitioner, that as per paragraph 8 of the complaint, notice issued on 5.1.1993 was without receiving any written information from the bank. It was issued only on an oral information. The period of limitation can be counted from the notice after receiving the written information about dishonouring of the cheque from the bank, as observed by the Kerala High Court in the case of John v. Ceorge Jacob [ 2000(1) Crimes 401 ]. As per the averment in paragraph 8, the petitioner received written information on 26.3.1993. Thereafter, he issued notice on 3.4.1993 and on that notice the complaint has been filed on 28.4.1993 which is within time. With regard to the service of the notice, as to on what date the first or second notice was served. Shri Kaushik could not reply. 4. Countering the contention Shri Gupta has submitted that upon perusal of notice dated 5.1.1993, it appears that the same was given under section 138 of the Act. Even upon oral information if the notice has been issued, the limitation starts from that notice. It is not necessary that notice is required to be issued only after receiving written information from the bank. With regard to the order of the Kerala High Court in the case of John (supra), Shri Gupta has submitted that in that case no notice was issued on oral information. He has further submitted that as observed by the apex Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar [ AIR 1998 SC 3043 ], limitation starts from the first notice and not from the second notice and in view of this, the observation of the learned Judge in paragraphs 13 and 14 of the impugned order that the complaint under section 138 of the Act is barred by Limitation is not erroneous. 5. Considering the aforementioned contentions of the rival parties, interpretation of section 138 proviso (b) is only required. The provision goes as under : "138. Dishonour of cheque for insufficiency, etc., of funds in the account. 5. Considering the aforementioned contentions of the rival parties, interpretation of section 138 proviso (b) is only required. The provision goes as under : "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 the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (c) ..... Explanation ...." (emphasis supplied) Both the parties have admitted that the earlier existing words 'within fifteen days' for issuance of notice has been subsequently amended. The words 'within fifteen days' have been substituted by section 7 of the Act of 55 of 2002 which carne in force from 6th February, 2003 by the word 'within thirty days'. Thus, prior to this, the period prescribed was fifteen days. It is also admitted that both the notices have been given in the year 1993 which is a period prior to the aforesaid date 6.2.2003. Hence, at that time, the time of fifteen days was provided. Considering this period, this Court has to pass this order. 6. In aforementioned provision, only high lighted words therein require interpretation. It is also admitted that both the notices have been given in the year 1993 which is a period prior to the aforesaid date 6.2.2003. Hence, at that time, the time of fifteen days was provided. Considering this period, this Court has to pass this order. 6. In aforementioned provision, only high lighted words therein require interpretation. Under perusal, the notice was required to be given by the payee within a period of fifteen days of the receipt of information by him, from the bank regarding the return of cheque as unpaid. Admittedly, in the present case, the first notice was issued on 5th January, 1993, on the ground that the payee, the petitioner herein, had received an oral information that the amount of cheque is not being paid. Upon this knowledge, the following notice was issued on 5th January, 1993. ^^izfr] Jh fot; ,lksfl,V~l] 2&, bUnziqjh Hkksiky }kjk& Jh ,l-ds- vkuan] ikVZuj fo”k;& pSd Ø-102427 nsuk cSad Hkksiky fn% 17-11-1992 ds fMlvkWuj gksus fo”k;dA lanHkZ& gekjk i= fnukad 26-12-1992A fiz; egksn;] vkids }kjk gesa ekg flracj 1992] vDVwcj 1992] uoacj 1992 ,oa jkW;Vhfj;y ds vkaf’kd Hkqxrku isVs :i;s nks yk[k dk ,d pSd Ø-102427 tks fd nsuk cSad Hkksiky dk fnukad 17-11-1992 dk fn;k x;k Fkk] gekjs cSadj LVsV cSad vkWQ bankSj us gesa blds cxSj Hkqxrku ds okfil vkus ckor lwfpr fd;k gSA ,oa bldh lwpuk fnukad 26-12-1992 dks vkidks nh xbZ Fkh ,oa vkidks rqjar Hkqxrku ckor fy[kk x;k FkkA vkids ikVZuj Jh lat; tk;loky ,oa vki Lo;a us Hkh ,d&nks jkst esa jde tek djus ckor~ cSad vf/kdkfj;ksa dks lwfpr ¼ekSf[kd :i ls½ fd;k FkkA ysfdu vkt fnu rd mDrä jde vki }kjk Hkqxrku ugha dh xbZ gSA vki }kjk mDr pSd gekjh ns;rkvksa dks pqdkus ds fy, fn;k Fkk ,oa bldk fMlvkWuj gksuk cSafdax dkuwu dh fof/k ¼la’kks/ku½ vf/kfu;e] 1988 dh /kkjk 4 }kjk ykxw ijØkE; fy[kr vf/kfu;e] 1881 dh /kkjk 138 dk mYya?ku gSA vr% vkils fuosnu gS fd i= izkfIr ds rqjar ckn 15 fnol ds vanj vki mDr jde dk Hkqxrku dj gels jlhn izkIr dj ysosaA bfr fnukad 5-1-1993 Hkonh; lapkyd okLrs vjksjk fMLVyjht izk-fy- iqjkuh lCth eaMh] fofn’kk ¼e-iz-½** (emphasis supplied) Upon perusal of the highlighted part in the afore-quoted notice, it appears that the bank of the petitioner had informed him with regard to the fact that the amount of the cheque is not being paid. Upon perusal of the notice as a whole, it also appears that the amount was not being paid on account of insufficiency of fund in the account concerned and it contains all the requirements of a valid notice. In the aforementioned circumstances, whether the aforesaid unwritten information or knowledge received by the petitioner, fulfills the requirements of the afore-quoted highlighted part of section 138 provision (b) or not, it is to be seen. While drawing attention on an order of Single Bench of Kerala High Court in the case of John (supra), it is emphasized on behalf of the petitioner that notice was not required to be issued upon unwritten information. The period of limitation starts from the period when the payee receives the information in writing from the bank with regard to dishonour of the cheque. As per the facts of the case of John (supra), the validity of notice issued by the payee was challenged only on the ground, that after having oral information, notice was to be given by the payee and the limitation was to start from that period. In that case, although an oral information was received by the payee earlier to receiving the written information, he issued notice after receiving of the written information. If the limitation was to be counted from the date of oral information, the notice issued was beyond the period of fifteen days and if the limitation was to be counted from the date of written information, the notice issued by the payee was within time. The learned Judge has observed that the obligation of issuance of notice by the payee, starts only after receiving an information in writing. It is not obligatory on the payee to issue any notice upon oral or unwritten information, It is rightly submitted by Shri Gupra on behalf of the respondent, that in the aforesaid case of Kerala High Court, no notice was given on the oral information and on this ground the present case is having different facts. In my considered opinion also, the obligation of issuance of notice by the payee starts from the date of receiving an information in writing from the bank with regard to dishonour of the cheque. 7. In my considered opinion also, the obligation of issuance of notice by the payee starts from the date of receiving an information in writing from the bank with regard to dishonour of the cheque. 7. Whether the aforesaid observation with regard to the obligation of issuance of notice by the payee, only after receiving the information in writing, will invalidate the first notice in this case also? Now it is to be seen. Upon perusal of the afore-quoted notice dated 5.1.1993, it appears that the same has been issued by the petitioner upon receiving an information (unwritten) from his bank. After receiving such information, the petitioner opted to issue notice under section 138 of the Act to the respondents. Once he opted this, in my considered view, subsequently he cannot take this defence that as the notice has been given before receiving the information in writing, hence, the same is not valid. If the notice was not given by him upon that oral information, of course there was no obligation upon him as observed hereinabove, but once he has opted to issue notice without waiting the written information and only upon receiving the oral or unwritten information he has issued the notice, he is estopped from saying that his first notice ought not to be considered as a valid notice and the limitation ought not to be counted from the date of issuance of the first notice. 8. Thus, after a deep consideration, it is observed that (1) it is not obligatory upon the payee to issue notice of demand under section 138 of the Act before receiving of information in writing from the bank with regard to dishonour of the cheque, and (2) however, if even on an unwritten or oral information the payee opts to issue legal notice of demand under section 138 of the Act, then subsequently he becomes estopped from taking defence that as the written information was received subsequently, he was not obliged to issue notice, hence, prior to receiving written information, the limitation ought not to be counted from the first notice. As observed by the apex Court in the case of Sadanandan Bhadran (supra), limitation will be counted on the basis of the first notice and not on the basis of the second notice. As observed by the apex Court in the case of Sadanandan Bhadran (supra), limitation will be counted on the basis of the first notice and not on the basis of the second notice. In this case also in view of this observation of the apex Court, the limitation will be counted from the first notice given by the payee, the petitioner herein from 5.1.1993 and not from the subsequent notice dated 3.4.1993. As provided by section 142 of CrPC, a complaint is to be filed within thirty days from the date of accruing of the cause of action, i.e., fifteen days time after receiving of the notice. Thus, counting from 5.1.1993, fifteen days plus thirty days, total forty five days, the complaint was required to be filed. In this case, it has been filed on 28.4.1993. If the limitation is counted from the first notice, then apparently and admittedly the complaint is barred by time. 9. In view of the above, if the charge under section 138 of the Act has not been framed by the Court below, there appears no error in the impugned order on this ground. Consequently, the revision is dismissed.