Judgment :- 1. The Criminal Appeal arises out of the judgment of acquittal, dated 05.05.2003, made in C.C.No.515 of 2001 on the file of the Judicial Magistrate's Court No.III, Salem. 2. The appellant herein as a complainant filed a complaint against the respondent/accused for the offence under Section 138 of Negotiable Instruments Act, stating that the respondent herein as a Proprietor of the Concern viz., M/S. Chitra Silk Trading Company, Shevvapet, Salem and he had business transaction with the complainant for the past 10 years. Since the outstanding due was to the tune of Rs.31,68,007/-, the complainant made a request to the respondent/accused to repay the dues. Hence, the respondent/accused issued three cheques, dated 26.05.2001 of Tamil Nadu Mercantile Bank Limited, Shevvapet, bearing cheque Nos.369424, 369425 and 369426 (i.e.) Ex.P1 series, which was presented for encashment in the Bank and that has been returned as per Ex.P2 return memo, dated 12.06.2001 and the xerox copy was marked as Ex.P6. Hence, the appellant/complainant issued Ex.P3 statutory notice dated 22.06.2001 and the same has been returned on 26.06.2001 as "left without instruction" under Ex.P4. P.W.2/Rajan/Assistant Manager of Tamil Nadu Mercantile Bank and P.W.5/Baskar Prabhu/Officer of Corporation Bank were deposed that the cheques were received and returned as funds insufficient. The statement of bank accounts and Cheque Register of Tamil Nadu Mercantile Bank were marked as Ex.P5 and the authorisation letter given by the Corporation Bank was marked as Ex.P7. Since the respondent herein has not repaid the amount, the appellant/complainant has preferred the complaint against the respondent under Section 138 of Negotiable Instruments Act, stating that the respondent herein had issued cheques knowingfully well that he is not having sufficient funds in the Bank account. Hence, he is guilty for an offence under Section 138 of Negotiable Instruments Act. 3. The learned trial Judge after following the procedure, framed the charge against the accused. The accused pleaded not guilty. The learned trial Judge examined P.W.1 to P.W.3 and Exs.P1 to P8 and placed the incriminating evidence before the accused and the accused denied the same. 4. On the side of the respondent/accused, D.W.1, who is none other than the paternal uncle of the accused, was examined and marked Exs.D1 to D3. 5. The accused pleaded not guilty. The learned trial Judge examined P.W.1 to P.W.3 and Exs.P1 to P8 and placed the incriminating evidence before the accused and the accused denied the same. 4. On the side of the respondent/accused, D.W.1, who is none other than the paternal uncle of the accused, was examined and marked Exs.D1 to D3. 5. After considering the oral and documentary evidence, the trial Court acquitted the accused stating that the cheques were issued for discharging the legally existing liability, but the statutory notice issued by the appellant/complainant was not served to the accused in accordance with law and hence, the complaint is premature and therefore, the complaint was dismissed, against which, the present appeal has been preferred by the appellant/complainant. 6. Challenging the judgment of acquittal, the learned counsel for the appellant would submit that the trial Court has erred in deciding that the statutory notice has not been served in accordance with law. As per the dictum laid down in the decision reported in (2007) 6 SCC 555 (C.C.Alavi Haji v. Palapetty Muhammed and another), this Court ought to have accepted the returned notice Ex.P4 was served in accordance with law. He further submitted that mere presentation of the cheque in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, 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. Learned counsel would take me through the original complaint. Even though complaint has been filed on 09.07.2001 and cognizable offence has been taken only on 12.10.2001. Hence, the complaint is not premature as per the decision of the Apex Court reported in 2000 SCC (cri) 1326 (Narsingh Das Tapadia v. Goverdhan Das Partani and another). That factum has not been considered by the trial Court and therefore, he prayed for setting aside the judgment of acquittal and for conviction. 7. Hence, the complaint is not premature as per the decision of the Apex Court reported in 2000 SCC (cri) 1326 (Narsingh Das Tapadia v. Goverdhan Das Partani and another). That factum has not been considered by the trial Court and therefore, he prayed for setting aside the judgment of acquittal and for conviction. 7. Resisting the same, learned counsel appearing for the respondent/accused would submit that notice has not been served to the respondent and the xerox copy of the return cover only was marked as Ex.P4 and the original has not been filed before the Court. Hence, he prayed for remanding the matter back to the trial Court to put forth his defence. He further submitted that D.W.1 was examined and through him, Ex.D2 letter written by the accused has been marked, in which, the accused stated that the disputed cheques were obtained by the appellant in force. 8. Learned counsel for appellant/complainant replied for the above argument that original return cover was submitted in the Civil Court, while the appellant filing the suit for recovery of money. He further submitted that he has no objection to remand the matter back to the trial Court and he is also ready to file the original document, after getting back from the Civil Court. 9. Considered the rival submissions made on both sides and perused the materials available on record. 10. P.W.1/T.M. Krishnamoorthy, who is the Deputy General Manager of M/S. N.R.C. Limited, deposed that the respondent had issued three cheques in respect of the amount due to the appellant. It is to be noted that the respondent/accused herein had not get into the witness box, but his relative/D.W.1 alone was entered into the witness box and through him, Exs.D1 to D3 were marked. It is pertinent to note that appellant herein had filed I.P.No.34 of 2001 before the Sub-Court, Salem and the same was marked as Ex.D1, to show that to declare him as an insolvent. It is also pertinent to note that the respondent herein had filed I.P.No.27/2002 before the Sub-Court, Salem and the same was marked as Ex.P8, in which, it was stated that the appellant herein was cited as 18th respondent/creditor and in the A Schedule property, the amount due to the appellant was mentioned as Rs.31,68,007/-. So it shows that the respondent had issued cheques only to discharge the legally enforceable debt. So it shows that the respondent had issued cheques only to discharge the legally enforceable debt. Once issuance of cheque is admitted, the appellant is entitled to the presumption under Section 139 of Negotiable Instruments Act. Even though it is a rebuttable presumption, the respondent had not get into the witness box and not rebutted the same. Per contra, Ex.P8 was filed to show that the respondent herein was due to the appellant to the tune of Rs.31,68,007/-. Hence, it would clearly prove that the cheques were issued by the respondent for discharging his legally existing liability and this aspect has been correctly held by the trial Court in para13 of its judgment. Therefore, it does not warrant any interference. 11. The other point is to be decided that in respect of issuance of notice. Admittedly, notice has been issued and that has been returned and original return cover has not been filed. Since the original cover has been filed in the Civil Court, only xerox copy of the return cover has been filed and marked as Ex.P4, in which, it was stated that 'left without instruction, 26/06/2001'. It is true, the notice has been allegedly issued to three address and that has been mentioned. But except Ex.P4, no other document has been filed to show that notice was served to all the three address. P.W.1/Deputy General Manager, in his evidence, he fairly conceded that the respondent herein had left the place on 5.6.2001 itself. In such circumstances, this Court has to decide that whether the notice has been served in accordance with law. 12. At this juncture, the learned counsel for the appellant/complainant would rely upon the decision reported in (2007) 6 SCC 555 (C.C.Alavi Haji v. Palapetty Muhammed and another), wherein it was held that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and therefore, the complaint is liable to be rejected. 13. At this juncture, the learned counsel for the respondent submitted that the above decision has been rendered only on 18.05.2007, but in the case on hand, the judgment of the trial Court has been rendered on 05.05.2003. So the appellant sought for some time to follow the procedure. Hence, he made a request that the matter may be remanded to the trial Court to decide that whether the complaint is premature in nature. As already stated that as per the dictum laid down by the Apex Court reported in 2000 SCC (cri) 1326 (Narsingh Das Tapadia v. Goverdhan Das Partani and another), the date of taking cognizable offence is a crucial date for deciding the complaint is a premature. In the case on hand, even though complaint has been preferred on 09.07.2001, the cognizable offence taken only on 12.10.2001. Hence, it is appropriate to extract para-10 to 12 of the above decision, which read as follows: "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 and others v. V. Narayana Reddy and others [ AIR 1976 SC 1672 ] dealt with the issue and observed: "What is meant by 'taking cognizance of an offence' by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. Again this Court in D. Lakshminarayana Reddy and others v. V. Narayana Reddy and others [ AIR 1976 SC 1672 ] dealt with the issue and observed: "What is meant by 'taking cognizance of an offence' by a 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 instituted, 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 purposes of proceeding under Section 200 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 investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence." 11. In the instant case mere presentation of the complaint on 8.11.1994 when it was returned to the complainant/appellant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the Magistrate taking cognizance within the meaning of Section 142 of the Act. The High Court appears to have committed not only a mistake of law but a mistake of fact as well. No cognizance was taken on 8.11.1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17.11.1994. The High Court appears to have committed not only a mistake of law but a mistake of fact as well. No cognizance was taken on 8.11.1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17.11.1994. The learned Judge of the High Court, without reference to various provisions of the Act and the Code of Criminal Procedure, wrongly held thus: "The date of filing i.e. 8.11.1994 in this case is crucial. The return of the complaint filed by the respondent to comply with some objections and subsequent filing on 17.11.1994 in this case does not have any affect. Therefore, the complaint is pre-mature and is liable to be dismissed." 12. As the impugned judgment is based upon wrong assumptions of law and facts, the same is liable to be set aside. As per the above decision, the complaint is not premature. So the trial Court is erred in dismissing the complaint under Section 138 of Negotiable Instruments Act, stating that the complaint is premature. Hence, I am of the view, the compliance of clause(c) of proviso to Section 138 of Negotiable Instruments Act enables the Court to entertain a complaint. Clause(b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause(c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed, and if filed not disclosing the cause of action in terms of clause(c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant. 14. Admittedly, the appellant was filed the complaint on 09.07.2001 and that has been returned on 09.07.2001 and represented on 13.07.2001 and again returned and subsequently, it was represented on 13.08.2001. Thereafter, cognizance has been taken on 12.10.2001. Considering para-7 and 11 of the above decision reported in 2000 SCC (cri) 1326 (Narsingh Das Tapadia v. Goverdhan Das Partani and another) and facts of the present case, I am of the view, the above decision is squarely applicable to the facts of the present case. Hence, the complaint is not premature. So the finding of the trial Court that the complaint is premature, is hereby set aside. 15. Hence, the complaint is not premature. So the finding of the trial Court that the complaint is premature, is hereby set aside. 15. Now this Court has made it clear that Ex.P1 series/cheques have been issued by the respondent for discharging legally enforceable liability and the complaint is not premature. The only point has to be decided by the learned trial Judge is that whether the notice was served under clause (b) of the proviso to Section 138 of the Negotiable Instruments Act. Since the original cover has been filed before the Civil Court, xerox copy only has been filed before the trial Court. Therefore, at request of the learned counsel appearing for both sides, the case is remanded back to the trial Court to decide that whether the notice issued was valid under clause (b) of the proviso to Section 138 of the Act. 16. In fine, * Criminal Appeal is allowed, setting aside the judgment of acquittal passed by the trial Court. * Consequently, connected Miscellaneous Petition is closed. * The case is remanded back to the trial Court to decide that whether the notice served was valid under clause(b) of the proviso to Section 138 of Negotiable Instruments Act. * Both the parties are directed to appear before the trial Court and the trial Court is directed to dispose of the matter within a period of three months from the date of receipt of the copy of this order.