Judgment :- This appeal under Section 378(4) Cr.P.C. upon grant of special leave by this Court, is by the complainant in C.C.No.308/2004 on the file of the Additional C.J.M., Bangalore District, and is directed against the judgment and order dated 23.11.2006 passed by the Presiding Officer, Fast Track Court-II, Bangalore Rural District in Crl.A.No.69/2006, whereby the judgment and order dated 17.5.2006 passed by the learned Magistrate convicting the respondent – accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’), came to be set aside and the accused was acquitted. 2. The appellant filed a complaint under Section 200 Cr.P.C. r/w Section 142 of the N.I. Act against the respondent – accused inter alia contending that the respondent – accused had borrowed a hand loan of Rs.1,00,000/- in the month of July 2003 and towards discharge of the said hand loan, he issued the cheque bearing No.238109 dated 15.11.2003, drawn on Canara Bank, Kolar and when the said cheque was presented for encashment, the same came to be returned unpaid with Banker’s endorsement “funds insufficient” and in spite of service of legal notice to the respondent – accused on 10.12.2003 as required by law, respondent – accused failed to pay the amount covered under the cheques as such he has committed offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate before whom the complaint was presented on 9.2.2004, took cognizance of the offence by order dated 9.2.2004 and after recording the sworn statement of the complainant directed registration of the criminal case as per his order dated 11.2.2004 and summons were ordered to be issued to the respondent – accused. Upon service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. During the trial, the complainant examined himself as PW.1 and was cross-examined. He also got marked Exs.P.1 to P.13. 4. The respondent – accused during his examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against him. In defence, he examined himself as DW.1 and also produced Exs.D.1 to D.3. It was the contention of the respondent – accused that the complaint was barred by time as provided by Section 142 of the N.I. Act, therefore, the court has no jurisdiction to take cognizance of the said offence. In defence, he examined himself as DW.1 and also produced Exs.D.1 to D.3. It was the contention of the respondent – accused that the complaint was barred by time as provided by Section 142 of the N.I. Act, therefore, the court has no jurisdiction to take cognizance of the said offence. It was also his contention that the statutory notice was not properly addressed to him, therefore, there was no service of notice on him. He also denied the case of the complainant that he had borrowed a sum of Rs.1,00,000/- and that the cheque in question had been issued for the discharge of the said liability. It was his further defence that he had delivered certain blank cheques to the father-in-law of the complainant as security and one such blank cheque has been misused in the name of the complainant, though the complainant had not lent any money nor the cheque in question had been issued for discharge of debt or other liability to the complainant. 5. When the matter was pending for hearing arguments on merits, it appears, the complainant filed an application under proviso (b) to Section 142 of the N.I. Act seeking condonation of delay in filing the complaint. Though the said application was opposed by the respondent – accused, the learned Magistrate by his order dated 10.4.2006 allowed the said application and condoned the delay and thereafter proceeded to hear further arguments. Ultimately by judgment dated 17.5.2006, the learned Magistrate, held the respondent – accused guilty of the said offence and consequently convicted the respondent – accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay fine of Rs.2,00,000/-. 6. Being aggrieved by the said judgment of conviction and order of sentence, the respondent filed appeal before the learned Sessions Judge in Criminal Appeal No.69/2006. The said appeal was made over to the Presiding Officer of the Fast Track Court-II. 6. Being aggrieved by the said judgment of conviction and order of sentence, the respondent filed appeal before the learned Sessions Judge in Criminal Appeal No.69/2006. The said appeal was made over to the Presiding Officer of the Fast Track Court-II. The Presiding Officer to the Fast Track Court-II, by the judgment under appeal dated 23.11.2006 held that as the complaint was barred by time, the learned Magistrate had no jurisdiction to take cognizance of the offence alleged in the complaint and since no application had been filed seeking condonation of delay as per proviso (b) to Section 142 of the Act, at the time of filing the complaint, and since, the learned Magistrate had not exercised the discretion to condone the delay, the trial is vitiated as such the judgment of conviction recorded by the learned Magistrate is perverse and illegal. The Appellate Court also noticed that, from the documentary evidence produced by the accused it is established that he was not residing in the address mentioned in the notice and therefore there was no proper service of notice. In that view of the matter, the learned Judge of the Fast Track Court allowed the appeal, set aside the judgment of conviction recorded by the learned Magistrate and consequently acquitted the accused. As against this judgment of the learned Judge of the Fast Track Court, the complainant has presented this appeal. Upon service of notice of this appeal, the respondent has appeared through his counsel. 7. I have heard Smt. Clare George, learned counsel appearing for the appellant and Sri. A.C. Patil, learned counsel appearing for the respondent. Perused the judgments under appeal. 8. It is the submission of the learned counsel for the appellant that the complainant had no knowledge of service of notice on the accused on 18.12.2003 as he did not receive the postal acknowledgement even after expiry of one month from the date of issue of notice and it is only through an endorsement received from the postal authorities dated 12.2.2004, marked as Ex.P.13, the complainant came to know about the service of notice on the accused on 18.12.2003 and therefore, the complaint filed on 9.2.2004 was within the period of limitation as such the Lower Appellate Court is not justified in acquitting the accused on the ground of delay. It is also her submission that though learned Magistrate did not condone the delay at the time of taking cognizance, subsequently by order dated 10.4.2006, delay in lodging the complaint came to be condoned and the said order was not challenged by the respondent – accused and in the absence of any challenge to the said order, the learned Sessions Judge ought not to have held that the complaint was barred by time, therefore, the judgment of the learned Sessions Judge is perverse, illegal and is liable to be set aside. 9. On the other hand, the learned counsel appearing for the respondent contended that condonation of delay at the fag end of the trial is not justified as the court had no jurisdiction to take cognizance of the offence alleged unless the complaint had been filed within 30 days from the date of accrual of the cause of action under clause (c) of Section 138 of the N.I. Act and unless the learned Magistrate chose to exercise his discretion to condone the delay as per proviso to clause (b) of 142 of the N.I. Act. Therefore, it is his submission that the order of taking cognizance of the offence without condoning the delay was itself bad in law, hence, the entire proceedings was vitiated and therefore, the learned Sessions Judge is justified in acquitting the accused. Therefore, it is his submission that the order of taking cognizance of the offence without condoning the delay was itself bad in law, hence, the entire proceedings was vitiated and therefore, the learned Sessions Judge is justified in acquitting the accused. It is his further submission that as per clause (c) of proviso to Section 138 of the N.I. Act, cause of action for the drawee of the cheque to file a complaint commences from the expiry of 15 days from the date of receipt of the notice by the drawer and not from the date of knowledge by the complainant of such receipt of notice by the drawer and therefore, in the case on hand since even as per the specific case of the complainant and as per the contents of Ex.P.13, the notice was served on the accused on 18.12.2003, the cause of action for the complainant to file the complaint started to run from 2.1.2004 i.e., after expiry of 15 days from 18.12.2003 and therefore, the complaint filed on 9.2.2004 was clearly barred by time and unless the Magistrate had exercised the discretionary jurisdiction as per proviso to clause (b) to Section 142 of the N.I. Act, he had no jurisdiction to take cognizance of the offence alleged in the complaint and he had no jurisdiction to condone the said delay at the fag end of the trial. It is also his submission that the defence put forth by the accused has been rightly accepted by the learned Sessions Judge and therefore, the judgment o the leaned Sessions Judge do not suffer from any illegality or irregularity calling for interference by this Court. 10. I have bestowed my serious considerations to the submissions made by the learned counsel on both sides. Perused the judgments under appeal. 11. Even as per the case of the complainant, the accused issued the cheque on 15.11.2003 and on the same day, the cheque was presented for encashment through the Banker of the complainant. According to the case of the complainant he received the information from his banker about the return of the cheque unpaid on 25.11.2003 and thereafter he issued notice within the statutory period of one month that is on 10.12.2003. As could be seen from the records, the complaint was prosecuted to the learned Magistrate on 9.12.2003. According to the case of the complainant he received the information from his banker about the return of the cheque unpaid on 25.11.2003 and thereafter he issued notice within the statutory period of one month that is on 10.12.2003. As could be seen from the records, the complaint was prosecuted to the learned Magistrate on 9.12.2003. Therefore the question for consideration is as to whether the complaint was barred by time as on that day. 12. Section 142 of the N.I. Act directs that notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or the holder in due course of the cheque as the case may be and such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. 13. Of course, the proviso to clause (b) introduced by Act 55 of 2002 brought into effect from 6.2.2003 states that the cognizance of a complaint may be taken by the court after the proscribed period if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. 14. Thus from the reading of Section 142 of the N.I. Act, it is clear that there is a prohibition for the court from taking cognizance of the offence under Section 138 of the N.I. Act unless the complaint is filed in writing within one month from the date of accrual of cause of action. If there is delay in filing the complaint unless the Magistrate before whom the complaint is presented condones the delay in exercise of the discretionary power vested in him as per proviso to clause (b) of Section 142, he has no jurisdiction to take cognizance. Therefore, before taking cognizance, it is the duty of the learned Magistrate to find out as to whether the complaint filed is within the period of limitation provided under clause (b) of Section 142 read with clause (c) of 138 of the Act and if the complaint is not within the period of limitation provided therein, whether the complainant has made out sufficient cause for condoning the delay. Unless the delay is actually condoned, he has no jurisdiction to take cognizance. Unless the delay is actually condoned, he has no jurisdiction to take cognizance. By catena of decisions, it is now well settled that the expression ‘taking cognizance’ though has not been defined either in the Code of Criminal Procedure or under the N.I. Act, the said expression only connotes that the Magistrate to take notice of the fact stated in the complaint or the Police report, and make himself aware of the facts to find out as to whether a prima facie case is made out for taking note of the offence alleged therein. The cause of action as per clause (c) of proviso to Section 138 of the Act would start to run from the expiry of 15 days of the date of the receipt of the notice by the drawer of the cheque, upon the failure on the part of the drawer of the cheque to pay the amount demanded in the notice, within 15 days of the receipt of such notice. Reading of clause (c) of Section 138 and clause (b) of Section 142 of the Act together clearly indicates that the cause of action for filing the complaint commences from the date of expiry of 15 days of the date on which the drawer of the cheque received or deemed to have received the notice. The said proviso does not speak of the knowledge of the complainant about the date on which the drawer of the cheque had received the notice. In the case on hand even as per the contents of Ex.P.13 on which the complainant placed strong reliance, the notice said to have been issued by the complainant place strong reliance, the notice said to have been issued by the complainant has been served on the accused on 18.12.2003. From that day, the accused had 15 days time to pay the amount. The period of 15 days expired on 2.1.2004. Within 30 days from that date the complaint ought to have been filed as provided under clause (b) to Section 142 of the Act. Admittedly, the complaint was filed on 9.2.2004 and therefore, it was not filed within the period allowed under the law and there was delay in filing the complaint. The period of 15 days expired on 2.1.2004. Within 30 days from that date the complaint ought to have been filed as provided under clause (b) to Section 142 of the Act. Admittedly, the complaint was filed on 9.2.2004 and therefore, it was not filed within the period allowed under the law and there was delay in filing the complaint. There is no dispute that the complainant did not file any application before the learned Magistrate at the time of presenting the complaint seeking condonation of delay by setting out the reasons for not filing the complaint within the period allowed under the law. Perusal of the complaint indicates that there is no averment as to on what date the statutory notice was served on the accused so that the Magistrate could find out as to whether the complaint was within time or not. Even according to the complainant, the notice dated 10.12.2003 was not only sent by registered post acknowledgement due but was also sent through certificate of posting to the same address. It is the plea of the complainant in the complaint that the notice sent through certificate of posting is deemed to have been served on the accused within a reasonable time from the date of dispatch. Even if 6 to 8 days time is construed as reasonable time for delivery, it was deemed to have been served on the accused on or before 18.12.2003. In the light of the specific case of the complainant, the learned Magistrate was not justified in taking cognizance of the offence filed on a complaint filed on 9.2.2004 beyond the period of time provided under clause (b) of Section 142 of the Act. 15. The learned Magistrate had no jurisdiction to condone the delay in lodging the complaint after the trial was over and when the case was posted arguments on merits. The learned Magistrate was under an obligation to consider before taking cognizance as to whether the complaint was within the time and if not, as to whether the complainant has made out sufficient cause for condoning the delay. Since the learned Magistrate has not condoned the delay, he had no jurisdiction to take cognizance of the offence. Upon taking of cognizance criminal prosecution get commenced. Since the learned Magistrate has not condoned the delay, he had no jurisdiction to take cognizance of the offence. Upon taking of cognizance criminal prosecution get commenced. Since the taking of cognizance by the learned Magistrate in this case was without any jurisdiction, the entire trial held against the accused is vitiated and therefore, the learned Sessions Judge has rightly held that the learned Magistrate was not justified in convicting the accused and therefore the judgment of the learned Sessions Judge acquitting the accused is in accordance with law. No illegality or irregularity is pointed out in the said judgment. As the order condoning the delay was passed on 10.4.2006 on an Interlocutory Application, in view of the bar created under sub-section (2) of Section 397 Cr.P.C., the respondent could not have questioned the correctness of the said order in a revision. Therefore, the respondent – accused was well within his right in raising the validity of the said order dated 10.4.2006, as a ground of appeal filed before the learned Sessions Judge. The learned Magistrate proceeded to pass the judgment on merits on 17.5.2006 within about five weeks from the date of condoning the delay. Therefore, there was no opportunity for the respondent – accused even to question the said order. Under these circumstances, the learned Sessions Judge is justified in interfering with the judgment of the learned Magistrate. The judgment of the learned Magistrate is perverse, illegal and contrary to the well settled principles of law. Therefore, the learned Sessions Judge has rightly set aside the said judgment and acquitted the accused. In this view of the matter, I find no ground to interfere with the judgment of the learned Sessions Judge. 16. Accordingly, the appeal is dismissed.