Mamta Gautam vs State of U.P.& Anr.

B.K. Rathi, J.—This revision has been preferred under Sections 397/401, Cr. P.C. against the order, dated 2831998 passed by IInd Additional Sessions Judge, Kanpur Nagar in revision No. 258 of 1997.

The facts of the case are as follows:

The applicant filed a complaint under Section 138 Negotiable Instrument Act against the opposite party No. 2. The opposite party No. 2 appeared in the case and filed objections for discharge alleging that the complaint is not maintainable. The objection of the opposite party No. 2 was rejected by the Vllth Metropolitan Magistrate. Kanpur Nagar on 1171997. Therefore, he preferred the above criminal revision which has been allowed and he has been discharged and the complaint has been dismissed. Aggrieved by that order, the complainant has preferred this revision.

I have heard Sri K.K. Tripathi, learned Counsel for the revisionist. None appeared for the opposite party No. 2 and therefore, they could not be heard. However, I have gone througluhe record.

Two chequos were issued by the opposite party, each for Rs. 50,000, which were dishonoured on 2741995 and 1971995 respectively. Notice was sent, as required by the law, on 2071995 and it was personally served on opposite party No. 2 on 26 795.

However, the complaint was not filed within one month from the date of service of the notice, though the payment was not made within fifteen days.

The allegation of the complainant is that after the service of the notice on opposite party No. 2 the complainant not to file the case and promised to pay the amount by 1521996. That when he did not pay the amount on the aforesaid date, the complaint was filed. The learned Counsel has referred to a Division Bench judgment of this Court in Mis. Nagdev and others etc. v. State of U.P. and others, 1998 All LJ 2510. It was held that if cheque is presented successively, the limitation starts from the last date of dishonour. However this reference is of no help to the complainant as the cheques are not dishonoured successively in the present case.

There is a mandatory time under Section 142(b) of one month in filing the complaint under Section 138, Negotiable Instrument Act. That mandatory period of one month cannot be extended by an agreement between parties or by the representation of the opposite party. Therefore, the contention that the complaint was not filed due to the representation of the opposite party No. 2 that he will make the payment by 1521996. i.e. of no avail, under Clause (b) of Section 142, Negotiable Instrument Act, the complaint can be filed within a period of one month, from the date of service of the notice. The complaint has therefore, hatred by lime.

Therefore, the summoning order was rightly quashed by the learned Additional Sessions Judge, Kanpur Nagar.

The revision is without merit and is, therefore, dismissed.

Revision dismissed.