JUDGMENT : S. M. Modak, J. In this appeal after hearing the appellant, I have dictated the order on 27-09-2019 by sitting on the dais. At that time, I have decided to allow the appeal. However, prior to signing the order, another view of Hon'ble Supreme Court in case of Yogendra Pratap Singh vs Savitri Pandey and another, (2014) 10 SCC 713 came to my notice. 2. So, I have brought it to the notice of learned Advocate for the appellant on 11-10-2019. Learned Advocate Shri Tiwari accepted his fault in not bringing it to my notice the ratio laid down in Yogendra's case (supra). According to him, it was due to oversight and it was unintentional. I have accepted it. Then Shri Tiwari argued the matter afresh and relied upon number of judgments. On this background, now I am dealing with the controversy on the basis of the latest view. Background of appeal 3. The appeal was filed in this Court on the background of acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1882 (for short, 'N.I. Act'). The present appellant filed Criminal Complaint Case No.213/2006. The accused issued a cheque of Rs. 1 Lakh to the complainant towards the discharge of the liability arising out of a hand loan taken by the accused. 4. The cheque got dishonoured for the reason 'insufficient funds'. The accused failed to make payment in spite of receipt of a constructive notice dated 23-05-2006. On this background, the complainant approaches the trial Court vide complaint dated 15-06-2006. The complainant gave evidence. Accused himself also gave evidence. After hearing arguments, learned Magistrate acquitted the accused. It was for the reason that complaint was filed at premature stage. That is to say the accused was not given 15 days clear time in making the payment. Controversy involved 5. So, the controversy which is raised before me is as follows : (a) what will be the correct date on which notice is deemed to have been served on the accused? (b) Whether the learned Magistrate was justified at a final stage in going into the issue of premature filing. (c) Whether the learned Magistrate ought to have considered date of filing of complaint that is 15-06-2006 or the date of issue of process i.e. 28-08-2006 as the date for taking cognizance. 6. (b) Whether the learned Magistrate was justified at a final stage in going into the issue of premature filing. (c) Whether the learned Magistrate ought to have considered date of filing of complaint that is 15-06-2006 or the date of issue of process i.e. 28-08-2006 as the date for taking cognizance. 6. The controversy has arisen because there was no clear-cut date about service of notice dated 23-05-2006. The envelope containing the notice sent by R.P.A.D returned back "as the accused/addressee was not found". The return envelope was tendered in evidence at Exhibit-19. The accused also cross examined the complainant. So, I would like to give my observations about the actual date of receipt of notice and whether trial Court observation to that effect is correct or not. Because question of interpretation of law to the facts can be looked after then only. Receipt of notice 7. For deciding this issue, the following dates are important :- Sr.No. Date Events 1 02-05-2006 Date of cheque (Exh.15) 2 12-05-2006 Cheque return memo by drawee/accused bank.(Exh.16) 3 23-05-2006 Date of notice (Ex.17) 4 23-05-2006 Posting (Exh.18) 5 (Exh.19) Returned envelope with A.D. slip. 6 (Exh.20) Notice dated 23-05-2006 taken out from returned envelope. It will be material to consider the dates mentioned by the postal authorities on the returned envelope at Exhibit.19. Sr.No. Date Events 1 24-05-2006 The address on the envelope not falling within the limit of one Postman. 2 25 and 26-05-2006 Normal visit by the Postman. 3 27-05-2006 Intimation. 4 03-06-2006 Not claimed. Admittedly, the complainant has not examined postal authorities. So the above dates and events are written after reading the remarks appearing on the envelope. Now, it will be material to consider the findings by the trial Court. Findings of trial Court 8. The envelope was exhibited through the complainant. He received back the envelope on 05-06-2006. During the cross examination only few questions were put to him about receipt of a notice and filing the complainant. He has answered thus :- "It is true that Exhibit 19 bears the date 03-06-2006 which is the date after the endorsement "not claimed". It is true that in notice I had given 15 days time to accused for payment". 9. Except the above answers, the complainant was not asked about the various dates appearing on the envelope, about incorrect address and premature filing. It is true that in notice I had given 15 days time to accused for payment". 9. Except the above answers, the complainant was not asked about the various dates appearing on the envelope, about incorrect address and premature filing. The accused stated in his evidence as follows :- "He has disputed the liability in favour of the complainant and denied of taking loan. Further he has said "he did not receive any letter/intimation from anybody regarding dishonour of these cheques". During cross examination he admits his residential address as that mentioned on the returned envelope. He has expressed ignorance about sending of Exhibit 17 (notice)." 10. On this background, trial Court in the judgment has framed following points :- "In nut shell it is about issuance of a cheque towards liability and its dishonour and failure to pay in spite of demand notice." 11. This is a composite point framed for determination and there are no separate points on material issues. The trial Court has acquitted the accused solely for the reason that the complaint is premature. The discussion finds place in paragraph nos. 6, 7 and 8. The trial Court relied upon the observations of this Court in case of Tajuddin M Somji vs M/s Jivraj Raoji Gandhi and Jivraj Raoji and another, (2009) 1 DCR 128 BOMBAY. Observations in Tajuddin case 12. The copy of said judgment is made available to me. I have perused it. There was an application for withdrawal of the order of issue of process. It was rejected in a Writ jurisdiction. This Court quashed the proceedings. The notice was received on 19-01-1991. The complaint was filed on 31-01-1991 i.e. earlier to 15 days. The learned Magistrate in the present case applied the ratio to the facts before him. He considered 03-06-2006 (as the date on which the envelope was not claimed) as the date of receipt of a notice and considered 18-06-2006 (15 days from 03-06-2006) as the date of starting of limitation. He also considered 15-06-2006, as the date of filing of complaint and hence held the complaint not maintainable. He has chosen not to discuss other evidence. My findings 13. Two dates are relevant. One is 27-05-2006, as the date on which intimation was given and 03-06-2006, as the date on which postal authorities put remark "not claimed". There are rules of Postal Department made in this behalf. He has chosen not to discuss other evidence. My findings 13. Two dates are relevant. One is 27-05-2006, as the date on which intimation was given and 03-06-2006, as the date on which postal authorities put remark "not claimed". There are rules of Postal Department made in this behalf. Indian Post Office Act, 1898 (Section 37) and the Indian Post Office Rules, 1933 (Rule 99) contains a provision about mode of dealing with undelivered articles. So, the undelivered articles has to be kept for seven days and has to be returned to the sender on 8th day of posting. The notice was posted on 23-05-2006 and it was returned on 03-06-2006. It means, the rules were followed. Provisions of General Clauses Act 14. As per Section 27 of the said Act "meaning of service by post" is given. It lays down guidelines under which service shall be deemed to have been effected. The essential conditions are as follows :- (a) The service is properly addressed. (b) Pre paying (a postage) is there. (c) posting by registered post. If these conditions are fulfilled, it is to be presumed that the document is served by post. In this case, I do not find any dispute raised on behalf of the accused about address and posting. Postal remark 15. It is true that the remark "intimation" and the remark "not claimed/unclaimed" has got different meaning. If the addressee is not found on the address, there is a practice to leave intimation on that address. Normally, the remark "not claimed" follows the act of intimation. It may happen that the addressee may come to post and collect the article. If he does not come, postal authorities used to return to the sender the undelivered article with remark "Not claimed". 16. So, it will be premature, to consider the date of remark "intimation" as the date on which notice is served. So the date on which remark "not claimed" is put has to be presumed as the date of service of notice. I came across a judgment in case of A. Chinnaswami vs M/s Bilakchand Gyanchand Company, (1998) 3 BCR 120, wherein process issued for Section 138 of N.I. Act offence was quashed on different grounds but, complaint was held within limitation. 20-12-2014, was the date of intimation and on 27-12-2014, was a date on which envelope was returned as "not claimed". I came across a judgment in case of A. Chinnaswami vs M/s Bilakchand Gyanchand Company, (1998) 3 BCR 120, wherein process issued for Section 138 of N.I. Act offence was quashed on different grounds but, complaint was held within limitation. 20-12-2014, was the date of intimation and on 27-12-2014, was a date on which envelope was returned as "not claimed". The period of limitation starts from 27-12-1994 and not from 20-12-1994. No doubt these are the factual observations and before drawing the inference, there was no discussion of any rules, still it guides me in this case. No other ruling in which different view has been taken was pointed out to me. 17. It is a settled law that the date on which limitation starts has to be excluded. In this case, the limitation starts on 03-06-2006 so, the 15 days will be complete on 18-06-2006. So, 19-06-2006 will be the date which is relevant for calculating the period as laid down in proviso (c) to Section 138 of N.I. Act. These factual observations given by trial Court are correct. I agree to them. Approach of the trial Court Proviso (c) to Section 138 of N.I. Act is reproduced below :- "The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice." 18. So the period of 15 days is to be computed not from the date of posting of notice but from the date on expiry of 15 days to be calculated from the date of receipt of a notice. The law which was interpreted at the time of passing of an impugned order in case of Tajuddin (supra) was brought to the notice of trial Court. In fact, when the impugned order was passed on 15-06-2009, the law interpreted in case of Tajuddin (supra) was not the correct law. Those observations were given without referring to the observations in case of Narsingh Das Tapadia vs Govardhan Das Bartani, AIR 2000 SC 2946 . So, it will be material to consider those observations. : "Mere presentation of the complaint in the Court cannot be held to mean, that is cognizance had been taken by the Magistrate. Those observations were given without referring to the observations in case of Narsingh Das Tapadia vs Govardhan Das Bartani, AIR 2000 SC 2946 . So, it will be material to consider those observations. : "Mere presentation of the complaint in the Court cannot be held to mean, that is cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complaint 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." 19. The Hon'ble supreme Court interpreted the phrase 'taking cognizance of an offence.' It was differentiated from mere filing of complaint. 'Taking cognizance' has been interpreted as - "broadly speaking when on receiving a complaint, the Magistrate to apply his mind for the purposes of proceeding under Section 200 and succeeding Section in Chapter XV of 1973 Code he is said to have taken cognizance of the offence within the meaning of Section 190 (1)(a)." 20. When the Magistrate is justified (on fulfillment of certain conditions) in taking cognizance is laid down in section 142 of the Negotiable Instruments Act. But the phrase 'taking cognizance' has not been defined in the provisions of Negotiable Instruments Act. Section 138 defines and punishes the offence. Hence, the procedure laid down in the Code of Criminal Procedure, 1973 (to the extent not provided in the N.I. Act) will be applicable. 21. Section 190 of the Code of Criminal Procedure, lays down the contingencies in which the Magistrate can take cognizance. The appellant also relied upon some of the judgments on this issue. The appellant wants to suggest that the position as existing on the date of taking of cognizance has to be considered. In this case, the appellant wants to suggest that cognizance was taken on the date on which the leaned Magistrate has applied its mind i.e. on 28-08-2006. According to him, the date of filing of complaint on 15-06-2006, is not the material date. The provisions of Section 190 of the Code 22. The Magistrate can take cognizance in three modes. Clause (a) lays down the contingency wherein Magistrate may take cognizance on receiving the complaint of facts. According to him, the date of filing of complaint on 15-06-2006, is not the material date. The provisions of Section 190 of the Code 22. The Magistrate can take cognizance in three modes. Clause (a) lays down the contingency wherein Magistrate may take cognizance on receiving the complaint of facts. The complaint filed for the offence punishable under Section 138 of N.I. Act falls in this category. Judicial Interpretation 23. The appellant relied upon following two judgments. (a) Devarapalli Lakshminarayana Reddy and others vs Narayana Reddy and others, AIR 1976 SC 1672 (b) Gopal Das Sindhi and others vs State of Assam and another, AIR 1961 SC 986 . 24. In nut shell, when the Magistrate apply his mind for the purpose of proceeding under Section 200 is said to have taken cognizance. Passing miscellaneous orders such as issuing warrants for the purpose of investigation or Police investigation, it does not amount to taking cognizance. There cannot be any dispute on this proposition of law. But the special provisions of the Act are material. Provisions of Negotiable Instruments Act 25. Taking cognizance as per of clause (a) of the sub-section (1) to section 142 of the said Act is correlated to proviso (c) to Section 138 of the said Act. So, once the cause of action had arisen as per clause (c), Court will be justified in taking cognizance within one month thereafter. The question is centered around whether cause of action has arisen as provided in Clause (c). There are two views in this regard. One is to consider the position as prevailing when the complaint is filed and Second is, to consider the position as prevailing on the date of taking of cognizance. The controversy before this Court cannot be answered simply by considering the interpretation of the phrase 'taking cognizance' as reproduced above. It can be answered only after considering the interpretation given of the provisions of N.I. Act by the Hon'ble Apex Court. Interpretation given by the Hon'ble Apex Court 26. Apart from the view expressed in case of Narsingh Das Tapadia (supra), the appellant fairly pointed out to me three judgments on this issue. All these judgments were declared in the year 2014 itself. All the three judgments consisting of three Judge Bench. Interpretation given by the Hon'ble Apex Court 26. Apart from the view expressed in case of Narsingh Das Tapadia (supra), the appellant fairly pointed out to me three judgments on this issue. All these judgments were declared in the year 2014 itself. All the three judgments consisting of three Judge Bench. They are as follows :- Sr.No. Name of parties and reported in Date of pronouncement 1 Dashrath Rupsingh Rathod vs State of Maharashtra and another, (2014) 9 SCC 129 01-08-2014 2 Vinay Kumar Shailendra vs Delhi High Court Legal Services Committee and another, (2014) 10 SCC 708 04-09-2014 3 Yogendra Pratap Singh vs Savitri Pandey and another, (2014) 10 SCC 713 19-09-2014 27. So, judgment in case of Yogendra Pratap Singh (supra) was later in time amongst three of them. Learned Advocate for the appellant is right. The judgment in case of Vinay Kumar Shailendra (supra) was not brought to the notice of Hon'ble Apex Court in case of Yogendra Pratap Singh (supra). 28. The Yogendra Pratap Singh (supra) was pronounced when certain issues were referred. It was referred on the background of differences in opinion as expressed in case of Narsingh Das Tapadia (supra) on one hand and Sarav Investment and Financial Consultancy (P) Ltd vs Llyods Register of Shipping Indian Office Staff Provident Fund, (2007) 14 SCC 753 . Law of precedent 29. When there are different views expressed by the same Court consisting of Hon'ble Judges of same strength, what should be the approach of the Courts in subsequent proceeding was explained in the following judgments : (i) New India Assurance Co. Ltd vs Hilli Multipurpose Cold Storage Private Ltd, AIR 2016 SC 86 . (ii) Sundeep Kumar Bafna vs State of Maharashtra and another, AIR 2014 SC 1745 . 30. In New India Assurance Co. Ltd (supra), the issue was what will be the period of limitation for filing written statement/ version as per the provisions of Section 13(2)(a) of the Consumer Protection Act. There were different views expressed by the Hon'ble Supreme Court. While answering the main issue, the Hon'ble Apex Court reiterated the law relating to precedent. 31. Whereas in case of Sundeep Kumar Bafna (supra), the issue was whether the Police will be deprived of getting custody if surrender by any accused person before the Court is accepted. In that case also, law of precedent is interpreted. 32. While answering the main issue, the Hon'ble Apex Court reiterated the law relating to precedent. 31. Whereas in case of Sundeep Kumar Bafna (supra), the issue was whether the Police will be deprived of getting custody if surrender by any accused person before the Court is accepted. In that case also, law of precedent is interpreted. 32. The issue about binding precedent arises in different contingencies. There may be a judgment delivered by Judges of equal strength. There may be a contingency wherein the observations of a Bench consisting of similar number of Judges is not pointed out to subsequent Bench consisting of similar strength. In nut shell, the following principles emerges :- (i) Law laid down in a judgment can be per incuriam if it is not possible to reconsile its ratio with that of previously pronounced judgment of co-equal or larger Bench. (ii) In nut shell, in such contingencies the view expressed by earlier Bench needs to be respected and the view expressed by subsequent Bench falls in the category of per incuriam. Issue involved 33. Now, on this background, we will see the law interpreted in above three referred judgments. In Dashrath Rupsingh Rathod (supra), the question involved was about territorial jurisdiction of the Court entertaining complaint under N.I. Act. The issue involve was which are the factors to be considered while deciding the territorial jurisdiction of the Court. While deciding this issue, the Hon'ble Supreme Court interpreted the relevant provisions of N.I. Act. They can be summed up as follows :- (a) Offence is said to have been committed no sooner cheque is returned unpaid. (b) A cognizance of the offence is however forbidden unless a complaint is filed within one month from cause of action. (c) Cause of action accrues when- (i) timely presentment of cheque in bank, (ii) payment demanded in time, (iii) timely failure to make payment. (d) Cause of action is one thing and ingredients for the offence is another thing. (e) Three provisions only postpones institution of a complaint and taking of cognizance. The other observations about territorial jurisdiction are not reproduced as they are not relevant for our discussion. It is true that later on the parliament has amended the provisions of N.I.Act, thereby incorporating certain factors which will decide territorial jurisdiction of the Court. This amendment is not relevant for our consideration. The other observations about territorial jurisdiction are not reproduced as they are not relevant for our discussion. It is true that later on the parliament has amended the provisions of N.I.Act, thereby incorporating certain factors which will decide territorial jurisdiction of the Court. This amendment is not relevant for our consideration. Observations in case of Vinay Kumar Shailendra (supra) 34. The issue involved was also about territorial jurisdiction of the Court when the demand notice was issued from a particular place. Whether the Court having territorial jurisdiction over that place gets a jurisdiction was the issue. The observations in case of Dashrath Rupsingh Rathod (supra), were also considered. The Court having a jurisdiction over a place wherein drawee bank is situated gets a jurisdiction. Observations in case of Yogendra Pratap Singh (supra) The issues referred were - (a) Whether cognizance can be taken before the expiry of 15 days as contemplated under proviso (c) to Section 138, (b) After the expiry of one month whether the complaint can be permitted to present his complaint. 35. Hon'ble supreme Court has taken over view of the judgments passed by various High Courts after the decision in case of Narsingh Das Tapadia (supra). This reference was prompted due to the view expressed by the Hon'ble Apex Court in case Sarav Investment (supra) contrary to the view expressed in case of Narsingh Das Tapadia (supra). In Sarav Investment (supra), Hon'ble Apex Court observed thus - "Service of notice in terms of Section 138 priviso (b) of the N.I. Act was a part of cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of cheque and calling upon him to pay was imperative in character." 36. After considering the legal provisions, ultimately Hon'ble Apex Court approved the view taken in Sarav Investment (supra) and disapproved the view taken in Narsingh Das Tapadia (supra). Finally, it has been concluded thus; (a) Complaint filed before the expiry of 15 days from service of notice cannot be said to disclose the cause of action in terms of Clause (c), (b) No offence can be said to have been committed unless the period of 15 days have elapsed. Finally, it has been concluded thus; (a) Complaint filed before the expiry of 15 days from service of notice cannot be said to disclose the cause of action in terms of Clause (c), (b) No offence can be said to have been committed unless the period of 15 days have elapsed. (c) It is not open to the Court to take cognizance merely because on the date of consideration a period of 15 days have elapsed, (d) The 5 essential features noted in Kusum Ingots must be satisfied. 37. The judgment in case of Narsingh Das Tapadia (supra) was delivered by Bench consisting of two Judges were judgments in case of Sarav Investments (supra) was delivered by a Bench consisting of two Judges. Three Hon'ble Judges delivered the judgment in case of Yogendra Pratap Singh (supra). I am of the considered opinion that similar issue was involved in Narsingh Das Tapadia (supra) and Sarav Investment (supra) and similar issue was answered by the Hon'ble supreme Court on a reference. 38. As against this I am of the considered opinion that issue involved in Dashrath Singh Rathore (supra) and Vinay Kumar Shailendra (supra) was different. The main issue in those cases was to decide which are the factors which governs territorial jurisdiction of the Magistrate. And answering that issue, there are observations about what will constitute a cause of action. The view in Dashrath Singh Rathore (supra) was approved in Vinay Kumar Shailendra (supra). So I am of the considered opinion that it is the observation in Yogendra Pratap Singh (supra) which will be more relevant to the issue involved before us. Conclusion on facts 39. So, the learned Magistrate was right in holding that complaint was filed earlier to accrual of the cause of action and hence not maintainable. Now the question arises whether the judgment of acquittal is to be confirmed or is to be interfere with. About the order 40. We get guidelines about it from paragraph 41 of Yogendra Pratap Singh's (supra) judgment. What should be the mode adopted in case of premature filing is laid down therein. It says as follows :- (a) The complainant may file fresh complaint within one month from the date of decision in the criminal case. (b) Delay in filing can also be condoned (c) The same complaint cannot be presented at a later stage. What should be the mode adopted in case of premature filing is laid down therein. It says as follows :- (a) The complainant may file fresh complaint within one month from the date of decision in the criminal case. (b) Delay in filing can also be condoned (c) The same complaint cannot be presented at a later stage. (d) The proper remedy is to file fresh complaint. (e) If it could not be filed within the time prescribed under Section 142(b), recourse is to satisfy the Court by showing sufficient cause. 41. My attention is brought to two orders passed in the light of directions given in case of Yogendra Pratap Singh (supra). The Hon'ble Supreme Court in case of Yogendra Pratap Singh (after judgment was pronounced on reference), permitted the complainant to file the fresh complaint within the period one month from today. So also in case of Manas Karmakar vs Jaiprakash Prasad, 2016 CJ 699 (Cal), liberty was given to file fresh complaint and delay was presumed to have been condoned. 42. I think in the present case the order of acquittal cannot be interfered with. It is important to note that the learned Magistrate except answering the issue of maintainability on the ground of premature filing has not decided other issues. So the complainant can be permitted to file a fresh complaint within 30 days from today. Hence, the order : ORDER (a) The appellant complainant is permitted to file fresh complaint for the offence punishable under Section 138 of the N.I. Act against the accused within 30 days from today. (b) The delay shall be presumed to have been condoned. (c) The complainant can make necessary averments about fresh filing in the fresh complaint. (d) The learned Magistrate is directed to issue process for the offence punishable under Section 138 of N.I. Act. (e) The complainant is directed to take steps for securing the presence of the accused. (f) After appearance the learned Magistrate is directed to record the plea of the accused on the same date. (g) The learned Magistrate is directed to decide and dispose of the case as early as possible on merits. (h) Both the parties are at liberty to adduce fresh evidence again. (i) In view of above, the appeal is disposed of.