JUDGMENT : 1. Heard Mr. Deepak Kumar, learned counsel appearing on behalf of the petitioner. 2. Heard Mr. P.K. Appu, learned counsel appearing on behalf of the State. 3. From perusal of the order sheet of this case this court finds that on 22.06.2020, learned counsel namely Shailendra Kumar Singh had informed the office of this court through his mobile phone that since he was travelling he was not able to assist this court on that date, but he assured that he shall join the case through video conferencing if the case is adjourned and listed on another date. Consequently, the matter was adjourned and was directed to be posted on 29.06.2020. Yesterday, it was reported by the office that in spite of link sent to Mr. Shailendra Kumar Singh for connecting himself through video conferencing, he did not join. It was also reported that in spite of repeated calls made to him, he did not respond to any of the calls. It was further reported that there was no communication from Mr. Shailendra Kumar Singh seeking any adjournment in the present case. Accordingly, this court heard the learned counsel for the petitioner and learned counsel for the State for the purposes of disposal of the present case. Thus, nobody appeared on behalf of opposite party No. 2 to assist this court. 4. This Criminal Revision is directed against the judgment dated 07.02.2014, passed by learned court of Additional Sessions Judge-VI, Civil Court, Hazaribag, in Cr. Appeal No. 122 of 2008 whereby the learned Additional Sessions Judge has been pleased to affirm the judgment and order dated 15.07.2008 passed by the learned Judicial Magistrate, 1st Class, Hazaribag in C. Case No. 466 of 2006 (T.R. No. 1313 of 2008) and has convicted the petitioner under Section 138 of the Negotiable Instruments Act and has sentenced him to undergo simple imprisonment for two years and pay compensation of Rs. 2 lacs to the complainant. Arguments of the petitioner 5. Learned counsel for the petitioner submits that short point involved in the present case is that condition precedent for filing of the case under Section 138 of the Negotiable Instruments Act, 1881 was itself not satisfied and accordingly the conviction and sentence passed against the petitioner cannot be sustained in the eyes of law. 6. He refers to the various dates as mentioned in the judgment. 6. He refers to the various dates as mentioned in the judgment. Exhibit-2 is cheque dated 10.04.2006 Exhibit-3 is cheque return memo dated 17.04.2006. The case was filed on 12.05.2006 Exhibit-4 is the notice dated 19.05.2006. Exhibit 5 and 5/1 are postal receipts dated 02.05.2006 and 19.05.2006 respectively. Exhibit 5/2 is the envelope returned dated 27.05.2006. 7. Learned counsel submits that although one postal receipt dated 02.05.2006 has been exhibited as Exhibit-5, but notice dated 02.05.2006 regarding bouncing of cheque has not been exhibited. He further submits that the notice which has been exhibited is notice dated 19.05.2006 and also its postal receipt dated 19.05.2006 which was admittedly issued after filing of the complaint case on 12.05.2006. He submits that notice dated 02.05.2006, if any, regarding bouncing of cheque has not been exhibited before the learned court below and accordingly the basic ingredients for offence under section 138 of Negotiable Instruments Act, 1881 has not been proved. 8. Without prejudice to the aforesaid submissions, the learned counsel for the petitioner has also submitted that even if it is assumed for the sake of argument, that notice regarding cheque bouncing was issued on 02.05.2006, no case under Section 138 of the N.I. Act could have been filed against the petitioner prior to expiry of prescribed period of 15 days from service of such notice. The present case was filed on 12.05.2006 and accordingly the requisite period of 15 days had not expired even if the date is counted from 02.05.2006. 9. Learned counsel for the petitioner has placed provision of Section 138 of the Negotiable Instruments Act, 1881 and has drawn attention of this court to the timeline which has been prescribed under the said Section. He submits that on account of the aforesaid facts and circumstance the petitioner has been wrongly convicted by the learned trial court and the appeal has been wrongly dismissed and accordingly the impugned judgments are perverse and fit to be set-aside. 10. Learned counsel has relied upon the judgment by the Hon’ble Supreme Court reported in (2013) 1 SCC 177 and submits that this judgment has been considered and followed in the case of Kamlesh Kumar versus State of Bihar reported in (2014) Eastern India Criminal Cases (2) 183 (SC). Arguments of the opposite party state. 11. 10. Learned counsel has relied upon the judgment by the Hon’ble Supreme Court reported in (2013) 1 SCC 177 and submits that this judgment has been considered and followed in the case of Kamlesh Kumar versus State of Bihar reported in (2014) Eastern India Criminal Cases (2) 183 (SC). Arguments of the opposite party state. 11. Learned counsel appearing on behalf of the opposite party State on the other hand does not dispute the fact that timeline provided in Section 138 of the Negotiable Instruments Act, 1881 are required to be followed and condition precedent for filing of the complaint case for alleged offence under Section 138 of the Negotiable Instruments Act, 1881 are also required to be satisfied. Findings of this court. 12. In the judgment passed by the Hon’ble Supreme Court in the case of Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713 , two questions were formulated for consideration :- (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? and, (ii) If answer to Question 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired? 13. The basic ingredients for constituting an offence under section 138 of the aforesaid act of 1881 have been explained in para 30 and 31 as follows: - “30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138. 31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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; (iv) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.” 14. The question no. The question no. (i) formulated by the Hon’ble supreme court has been answered in para 34 to 38 and it has been held that the complaint under section 138 of the aforesaid act of 1881 filed before expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. Para 34, 37 and 38 of the aforesaid judgments are quoted as under:- “34. Insofar as the present reference is concerned, the debate broadly centres around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour.” “37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia and so also the judgments of various High Courts following Narsingh Das Tapadia that if the complaint under Section 138 is filed before the expiry of 15 days from the date on which notice has been served on the drawer/accused the same is premature and if on the date of taking cognizance a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. 38. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy3 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of the law and criminal proceedings initiated on such complaint are liable to be quashed.” 15. In the judgment passed by the Hon’ble Supreme Court in the case of Kamlesh Kumar versus State of Bihar (supra) the Hon’ble supreme court has followed the earlier judgment passed in the case of MSR Leathers versus S. Palaniappan and another reported in (2013) 1 SCC 177 and held that the complaint was not maintainable as all the three conditions mentioned in para 12 of the judgment passed in the case of MSR Leathers ( supra) have not been followed. Para 12 of the judgment passed in the case of MSR Leathers ( supra) is as follows:- “12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.” 16. This court finds that the learned trial court has come to a finding that the case was instituted on 12.05.06 and the legal notice which has been proved as exhibit 4 shows that it was sent after filing of the case. It has also been held by the learned trial court that the complaint petition which was proved as exhibit -1 failed to show that when the legal notice was given to the accused but the complainant in his solemn affirmation admitted that on 2.5.2006 he sent legal notice which was sent on 02.05.2006 but that has not been proved as exhibit. 17. Inspite of aforesaid finding, the learned trial court has recorded that the court had perused the registry slip and that exhibit shows that a notice was issued to the accused and this proved that a letter was sent to the accused and accordingly it was self-evident that notice was issued. In the light of this reasoning, the learned trial court held that though legal notice is not proved, but it is proved that a notice was issued in the name of the accused and thereafter within the stipulated time i.e on 12.05.2006, the case was instituted. The learned trial court further rejected the evidence and claim of the accused that there was no existing debt and relied upon presumption under section 139 of the Negotiable Instruments Act, 1881 and held the petitioner guilty of offence under section 138 of the said Act of 1881. 18. This court finds that the learned trial court erred in law in holding that notice regarding bouncing of cheque was issued to the petitioner merely on the basis of the postal receipt dated 02.05.2006 and has further erred in law in holding that thereafter within the stipulated time the case was instituted. 18. This court finds that the learned trial court erred in law in holding that notice regarding bouncing of cheque was issued to the petitioner merely on the basis of the postal receipt dated 02.05.2006 and has further erred in law in holding that thereafter within the stipulated time the case was instituted. Considering the clear language of the section 138 of Negotiable Instruments Act, 1881 as well as the aforesaid judicial pronouncements of the Hon’ble Supreme court, a case for prosecution under section 138 of Negotiable Instruments Act, 1881 is not maintainable before expiry of 15 days of service of notice. In the present case the complaint case was filed after 10 days of issuance of notice, even if it is assumed that postal receipt dated 02.05.2006 was relating to cheque bouncing notice. 19. The learned lower appellate court noticed that Section 138 of the Negotiable Instrument Act provides 15 days’ time to the drawer of such cheque to make the payment after receiving the notice demanding payment but still upheld the conviction of the petitioner. 20. The learned lower appellate court recorded the findings as under: - “It is apparent from evidence that the complainant has filed this case within ten days of issuance of registered notice. The date of service of notice upon the accused is not available in evidence. Now a question arises as to whether it vitiates the trial? In section 138 of the N.I. Act the Legislature has clearly stated that for the dishonoured cheque drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice. To my considered opinion, the sole purpose to give notice for demand is to give the drawer of cheque an opportunity to absolve from his liability u/s 138 N.I. Act, if he prefers to make the payment of the amount concerned by the cheque within 15 days of receiving the notice. In this case, the complainant has claimed that after receiving the notice, the accused met with him on 10.05.2006 and directed him to wait for 2-3 months for money. The complainant (C.W.-1) at para-1 of his examination-in-chief has stated when the cheque was bounced, he met with the accused. The accused took a fortnight time for payment, but when did not make payment, pleaders notice was given to him. The complainant (C.W.-1) at para-1 of his examination-in-chief has stated when the cheque was bounced, he met with the accused. The accused took a fortnight time for payment, but when did not make payment, pleaders notice was given to him. This witness has very clearly stated that after issuance of notice the accused approached him and desired 3-4 months’ time for payment. The defence has not assailed this statement of complainant in cross-examination. It remained unrebutted. The purpose for issuance of notice has been fulfilled. I find that the accused Anil Chandra had got knowledge about the dishonour of the cheque much before the filing of this complainant case and had not made payment of the cheque. The accused had the opportunity to make payment in Court within fifteen days of receiving of Court’s notice, if he was honest towards his cheque.” 21. This court is of the considered view that the learned appellate court erred in law in ignoring the mandatory time frame prescribed under section 138 of aforesaid Act of 1881 and held that the complaint case filed after 10 days of issuance of notice of bouncing of cheque was not fatal to the case on the ground that the purpose for issuance of notice has been fulfilled as the accused Anil Chandra had got knowledge about the dishonour of the cheque much before the filing of the complainant case and had not made payment of the cheque and that the accused had the opportunity to make payment in Court within fifteen days of receiving of Court’s notice, if he was honest towards his cheque. The said view of the learned appellate court is perverse and in direct conflict with the ratio of the aforesaid judgments passed by the Hon’ble supreme court that the complaint under Section 138 of the N.I. Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of the law and criminal proceedings initiated on such complaint are liable to be quashed. 22. 22. While considering the present case in the light of the aforesaid judgments passed by the Hon’ble Supreme Court, this court finds that in the present case the notice regarding bouncing of cheque prior to filing of the case has not been exhibited and what has been exhibited is only a postal slip dated 02.05.2006 and the complaint case was filed on 12.05.2006 i.e. prior to expiry of 15 days from the alleged date of dispatch of notice regarding cheque bouncing. Considering the ratio of the aforesaid judgments of Hon’ble Supreme Court, the complaint itself was not maintainable as it was filed within 10 days from the alleged date of dispatch of notice. Thus, neither the notice dated 02.05.2006 has been exhibited nor the case has been filed after expiry of the stipulated time frame as per the said Act of 1881. Rather one legal notice dated 19.05.2006 and its postal receipt issued after filing of the complaint case has been exhibited. The aforesaid aspect of the matter has not been properly considered by the learned courts below and both the courts have erred in holding the petitioner guilty of offence under section 138 of the aforesaid Act of 1881 by resorting to the presumptions under section 139 of the Act of 1881 although the complaint itself was not maintainable on the day it was filed. 23. In view of the aforesaid findings particularly the finding that the complaint was not maintainable on the day it was filed, the impugned judgments of conviction and sentence are set-aside as the same are perverse and contrary to the aforesaid judicial pronouncements by the Hon’ble Supreme court. 24. This petition is allowed. 25. The office is directed to send back the records to the court concerned. 26. Let this judgment be immediately communicated to the court concerned through FAX/e-mail.