JUDGMENT : 1. This petition has been filed for quashing of entire criminal proceeding in connection with Complaint Case No.1116 of 2013 including order taking cognizance dated 02.07.2013 passed by the learned Judicial Magistrate, First Class, Ranchi whereby cognizance of offence under section 138 of Negotiable Instruments Act, 1881 has been taken and summons has been directed to be issued against the petitioner, pending in the court of Judicial Magistrate, First Class, Ranchi. The prosecution story is based on the typed complaint petition for the complainant namely Dindayal Singh. It is alleged that the accused no.2 on behalf of the Care Vision Infrastructure and Agrotech Ltd. fraudulently convinced and motivated the complainant to invest money in the said company with an assurance that after 12 months the money will be returned to complainant with 12 % interest over the invested money. It has been further alleged that the complainant invested altogether Rs.3,00,000/- in the company. It is further alleged that on maturity the accused no.2 had issued cheque of Rs.3,36,000/- bearing cheque no.913947 of Bank of India Kantatoli Branch Ranchi having account no.459920110000074 dated 16.01.2013. It is alleged that the said cheque was deposited by the complainant in his account in the said bank for encashment on 16.1.2013 however, the said cheque was returned unpaid on 16.1.2013 itself on account of insufficient fund. The accused apologized for dishonor of cheque and at the same time requested the complainant to redeposit the same in the bank on 25.1.2013 for fresh clearance. It is further alleged that the complainant on assurance by the accused again deposited the said cheque on 25.1.2013 which too dishonoured on account of insufficient of fund. The accused assured to the complainant to redeposit the cheque again on 07.3.2013 and the said cheque dishonoured again on 8.3.2013 on account of insufficient fund. It is alleged that the complainant then sent a legal notice dated 22.3.2013 and request was made to the accused to make payment within a period of 30 days from the date of receipt of the said notice and the sane notice was duly served upon the accused on 23.3.2013. it is further alleged that the despite the service of the said notice the accused did not make the payment of dishonoured cheque to the complainant.” 2. it is further alleged that the despite the service of the said notice the accused did not make the payment of dishonoured cheque to the complainant.” 2. The learned counsel appearing for the petitioner submits that the cheque issued by the petitioner was dishonoured and returned back by the banker unpaid with return memo dated 16.1.2013 and further again dishonoured on 25.01.2013 and third time on 08.3.2013 it was dishonoured for the reason that ‘payment stopped by the drawer’ and the complainant thereafter sent a demand notice through his lawyer by registered post on 22.03.2013 under section 138 N.I.Act, however, when the cheque amount remained unpaid then this complaint was filed by the complainant on 03.05.2013. 3. She further submits that the cognizance is also not in accordance with law and the judicial mind has not been applied in taking cognizance. She further submits that the case has been filed prematurely as in the light of section 138(c) of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act) 15 days was required to be looked into by the complainant however without looking into the statutory provision the complaint has been filed which is premature. She relied by on the case of ‘Subodh S. Salaskar v. Jayprakash M. Shan and Another, (2008) 13 SCC 689 . Paragraph no.20, 22, 23, 25 are quoted below : “20. The legal notice admittedly was issued on 17-1-2001. It was sent by speed post. It was supposed to be served within a couple of days. A bare perusal of the statements made in Para 10 of the complaint petition, as quoted hereinbefore, clearly demonstrates that although the actual date of service of notice was allegedly not known, the complainant proceeded on the basis that the same was served within a reasonable period, otherwise in absence of service of notice or deemed service thereof, the question of non-compliance with clause (c) of the proviso appended to Section 138 of the Act would not arise and consequently the complaint petition would not be maintainable. 22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: “27. 22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: “27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 23. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by speed post, ordinarily the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days. 25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001.” 4. Per contra, Mr. Allam, the learned Senior counsel appearing for the O.P.No.2 submits that these are the submission which are subject matter of trial and once the notice is issued presumption is there that the notice has been received and that is the subject matter of trial. He relied in the case of “Ajeet Seeds Ltd. v. K. Gopala Krishnaiah”, AIR 2014 SC 3057 . He relied in the case of “Ajeet Seeds Ltd. v. K. Gopala Krishnaiah”, AIR 2014 SC 3057 . Paragraph nos.10 and 11 of the said judgment is quoted hereinbelow : “10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod Shivappa wherein this Court has held that service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 CrPC. These observations are squarely attracted to the present case. The High Court’s reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. These observations are squarely attracted to the present case. The High Court’s reliance on an order passed by a two-Judge Bench in Shakti Travel & Tours is misplaced. The order in Shakti Travel & Tours does not give any idea about the factual matrix of that case. It does not advert to rival submissions. It cannot be said therefore that it lays down any law. In any case in C.C. Alavi Haji, to which we have made a reference, the three-Judge Bench has conclusively decided the issue. In our opinion, the judgment of the two-Judge Bench in Shakti Travel & Tours does not hold the field any more.” 5. Relying on this judgment Mr. Allam, the learned Senior counsel submits that in light of section 27 of the General Clause Act even notice is unserved it is deemed to have been served on that address as held by the Hon’ble Supreme Court in that case. On the deemed service of notice he referred to the case of ‘N. Parameshwaran Unni v. G. Knnan and Anr.”, AIR 2017 SC 1681 . Paragraph no.15 of the said judgment is quoted hereinafter : “15. This Court in a catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed3. Though in the process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the NI Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened in this case.” 6. Relying on this judgment, Mr. Allam, the learned Senior counsel for the O.P.no.2 submits that how notice is required to be served and presumed to be served has been discussed therein. Relying on this judgment, Mr. Allam, the learned Senior counsel for the O.P.no.2 submits that how notice is required to be served and presumed to be served has been discussed therein. By way of relying in the case of “C.C. Alavi Haji case [C.C. Alavi Haji v. Palapetty Muhammed”, (2007) 6 SCC 555 , he submits that section 114 of the Evidence Act has been considered in that case and drawing the presumption has been discussed in paragraph no.13 of the said judgment, which is quoted hereinbelow : “13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: ‘27. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: ‘27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.’ 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’ or ‘house locked’ or ‘shop closed’ or ‘addressee not in station’, due service has to be presumed. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’ or ‘house locked’ or ‘shop closed’ or ‘addressee not in station’, due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [ (1992) 1 SCC 647 ], State of M.P. v. Hiralal [ (1996) 7 SCC 523 ] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.” 7. On these grounds, he submits that there is no illegality in the filing of the case and the case has been rightly filed once the notice has been issued on 22.03.2013 and it was required to be served in the city of Ranchi itself it will be presumed that the notice has been served and the case has been rightly filed on 03.05.2013. 8. In the case in hand, the entire argument is on the interpretation clause ‘c’ of the proviso to section 138 of N.I. Act. In light of the argument the Court is only required to answer as to whether the case was filed prematurely or not. Section 138(c) of the N.I.Act is quoted below : “(c) 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.” 9. On perusal of clause (c) of section 138 N.I.Act, it is crystal clear that if the drawer of the cheque failed for payment of cheque amount within 15 days of the receipt of the notice, then only the case can be filed. Once the statutory provision has been provided in a statute it is required to be followed and that is the mandate of law to be followed the provision of that statute. Once the statutory provision has been provided in a statute it is required to be followed and that is the mandate of law to be followed the provision of that statute. Admittedly in the case in hand, the required notice was issued on 22.03.2013 which is not in dispute, however, the case has been filed on 03.05.2013, there is strict bar of filing the case in view of clause(c) of section 138 of N.I.Act before expiry of 15 days and if it is so, no cognizance of offence be taken on the basis of such complaint. Reference may be made to the case of “Yogendra Singh v. Savitry Pandey’, (2014) 10 SCC 713 . Paragraph no.34, 35 and 35 of the said judgment are quoted below : “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. 35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines “complaint”. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. 36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. [Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 : 2000 SCC (Cri) 546 : AIR 2000 SC 954 ] and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.” 10. Looking to the cognizance order the Court finds that in a format the blank spaces have been filled up by way of filling of the names of the Bank, name of the accused, cheque number, reason of non-payment, notice date, filing of the case etc. which clearly suggest that there is non-application of judicial mind. The argument of Mr. Allam, the learned Senior counsel appearing for the O.P.No.2 with regard to presumption of notice is not in dispute. In the case of “Ajeet Seeds Ltd. v. K. Gopala Krishnaiah”, (supra) relied by the learned senior counsel for the O.P.No.2, the dispute was with regard to service of notice. That is being not the subject matter of the present case as that has not been denied and that judgment is on the other facts and is not helping the O.P.No.2. The judgment relied by the learned counsel for the O.P.No.2 in the case of “N. Parameshwaran Unni v. G. Knnan and Anr.”(supra), is on the point of service of notice wherein the notice is there refused as not available in the house and whether it will be presumed to be served or not that is not helping the O.P.No.2. The judgment relied by Mr. The judgment relied by Mr. Allam, the learned senior counsel in the case of “Alavia”(supra) was on the point of no averment in the complaint that the notice was served to at the correct address by the registered post and in that view of the matter the Hon’ble Supreme Court has considered section 100 of the Evidence Act and held that the Court may draw presumption that what has happened until there are circumstances in a particular case to show that the cognizance correct course of business was not followed, this judgment is also on the different footing. The case in hand, on this direction answer by the Hon’ble Supreme Court in the case of “Yogendra Singh v. Savitry Pandey” (supra). It is the judgment delivered by the Full Bench of the Court, in which it has been clearly held that reading of section 138 of N.I.Act along with section 142(b) of the N.I.Act which reiterates the position to the point of time when cause of action is arisen and it has been held that no offence can be said to have been committed the presumption under proviso (c) of section 138 of the said Act has in fact elapsed and it has been held that taking cognizance thereof, period of 15 days from the date of which the notice has been served on the drawer has been elapsed. Thus, the Court comes to the conclusion that the case was filed prematurely. Looking into clause (c) of section 138 of the said Act, that the cognizance order which filled up in a format suggest that there is non-application of judicial mind. 11. Accordingly, order taking cognizance dated 02.07.2013 in connection with Complaint Case No.1116 of 2013 passed by the learned Judicial Magistrate, First Class, Ranchi, pending in the court of learned Judicial Magistrate, First Class, Ranchi is set aside. 12. Admittedly the amount has been taken by the petitioner and in view of that, the O.P.No.2 cannot be allowed to be remediless and the answer to this has already been answered by the Hon’ble Supreme Court in the case of ‘Yogendra Singh v. Savitry Pandey’(supra), paragraph no.41 of the said judgment is quoted hereinbelow : “41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the court after the prescribed period. Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly. 13. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly. 13. In light of the direction issued by the Hon’ble Supreme Court in paragraph no.41 of the said judgment, it is open to the O.P.No.2 to file a fresh complaint case before the learned court as has been held in paragraph no.41 of the said judgment and if the same could not be filed within the time prescribed under section 142(b) of the said Act, O.P.No.2 can seek the benefit under the aforesaid proviso. 14. With the aforesaid observation and direction, Cr. M.P. No. 1966 of 2022 stands disposed of.