ORDER B.K. Rathi, J.
1. These petition under Section 482, Cr.P.C. have been filed to quash the proceedings of complaint case Nos. 947 of 1998, 543 of 1998, 542 of 1998 and 946 of 1998, all pending in the Court of C.J.M., Agra under Section 138 of N.I. Act filed against the petitioners by respondent No.2. All the complaints have been filed with similar allegations and these petitions involve the common questions for decision and therefore, are being disposed of by this common judgment.
2. I have heard Sri V.K. Singh, learned counsel for the petitioners in all the four cases and Sri K.K. Dwivedi, learned counsel for the respondent No.2. The complaint under Section 138, N.I. Act have been filed by the respondent No.2 against the petitioners with the usual allegations that the cheque issued by the petitioners were dishonoured and the amount of the cheque has not been paid in spite of the service of notice within fifteen days of the date of dishonour. That, therefore, the petitioners have committed an offence punishable under Section 138, N.I. Act.
3. It is contended by the learned counsel for the petitioners that criminality has been attached by Section 138, N.I. Act to the civil dispute. That, therefore, in order to fasten criminal liability on a person the requirement of the law has to be fully complied with. Learned Counsel for the petitioners has referred to Section 138 and it is alleged that the proviso (b) of section provides that the notice of demand for the payment of the amount of the cheque should be given within fifteen days of the receipt of information from the bank regarding the return of the cheque as unpaid. It is contended that Clause (c) of the proviso of that section further provides for fifteen days time to the drawer to make the payment of the cheque, therefore, after the service of the notice the amount can be paid by the drawer of the cheque within fifteen days. That if the amount is paid within 15 days no offence under Section 138, N.I. Act is made out.
4. It is also contended that Clause (b) of Section 142 provides that the complaint can be made within one month of the date on which the cause of action arises under Clause(c) of the proviso to Section 138. It is contended that according the said proviso the cause of action arises on the expiry of fifteen days of the service of the notice regarding the dishonour of the cheque to the drawer. That, therefore, unless the date of the service is mentioned it cannot be said that cause of action for filing complaint has arisen.
5. It is, therefore, contended that the date of sending the notice as well as the date of service of the notice should be mentioned in the complaint to show that the amount of the cheque was not paid by drawer within fifteen days of the notice. The contention of the learned counsel is that in the complaint it is mentioned that the notice was sent on 13-2-1998 by registered post which have been delivered to the accused. However, the date of the delivery has not been mentioned. The complaint has been filed on 11-3-1998, therefore, it may be within a period of fifteen days of the service of the notice which have been allowed for making the payment. That unless fifteen days has expired after the service of the notice the offence under Section 138, N.I. Act is not complete. That, therefore, in the absence of allegations as to when the notice was served it cannot be said that offence was complete on the day, the complaint was filed i.e. on 11-3-1998. That, therefore, the complaint is not maintainable. Learned Counsel in support of the argument has referred to the case of Rajiv Kumar v. State of U.P. 1991 ACC 353; (1991 All LJ 994). In this case the proviso of Section 138, N.I. Act considered and also Section 142, N.I. Act were considered and it was held that the information about non payment of the cheque was served on 27-2-1990. The notice was sent by registered post on 8-3-1990. There is no evidence or acknowledgment receipt of the post office to show that notice was served personally on the accused-respondents. On the other hand, the postal acknowledgment show that it was delivered to one Guddu. That, therefore, the notice was not served on the respondents as required under Section 138(b) of the Act and therefore, the complaint under Section 138, N.I. Act is not maintainable.
6. The facts of this case are different and has no application to the present case. In this case there is specific allegations that notice was served on the petitioners. There is also presumption of the service of notice and it is not denied that it was sent at correct address of the petitioners by registered post. Therefore, it is a matter of evidence whether as to on whom and when the notice was served, and whether the offence was complete on the day the complaint was filed, i.e. on 11-3-1998. However, the complaint cannot be rejected on the ground that the offence was not complete for the reason that date of service has not been mentioned. It is a question of fact to be decided by the trial Court and I do not find any ground to quash the complaint for the reason that the date of the service has not been mentioned. Proviso to Section 42 of the N.I. Act is exhaustive regarding the complaint and it did not provide that the date of the service should also be mentioned in the complaint. The same is therefore, not a mandatory requirement for the complaint and it cannot be quashed on this ground.
7. The petitioners have not produced any prima facie evidence to show that the complaint is barred under Clause (b) of Section 142. Therefore, this question can be decided by the trial after the evidence and cannot a ground to quash the complaint as there is no breach of the mandatory provisions. No other point has been pressed in these petitions.
8. The petitions are therefore, without merits and are dismissed. The stay order dated 7-5-1999 are vacated.