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Issues Involved:
1. Service of notice under proviso (b) to Section 138 of the NI Act. 2. Premature filing of the complaint before the expiry of the 15-day notice period. Issue-wise Detailed Analysis: 1. Service of Notice under Proviso (b) to Section 138 of the NI Act: The accused-opposite party challenged the conviction on the grounds that no notice, as required under proviso (b) to Section 138 of the NI Act, was served upon him. The appellate court, upon reviewing the materials on record, concluded that the notice was indeed served on the accused. This finding was not contested further, and the service of notice was established as compliant with the statutory requirement. 2. Premature Filing of the Complaint: The primary contention was that the complaint was lodged prematurely, i.e., before the expiry of the mandatory 15-day notice period stipulated under Section 138 of the NI Act. The complaint was filed on 11.10.1993, just 13 days after the notice was served on the accused on 29.09.1993. The appellate court held that since the complaint was filed prematurely, the prosecution was not maintainable and thus illegal. However, the High Court clarified the distinction between the filing of a complaint and the taking of cognizance by a Magistrate. The court emphasized that mere filing of a complaint does not equate to taking cognizance. Cognizance involves the Magistrate applying his mind to the facts of the complaint to determine if there is a prima facie case to proceed against the accused. This principle was supported by references to precedents such as Narsingh Das Tapadia v. Goverdan Das Partani and Anr., AIR 2000 SC 2946, which distinguished between filing a complaint and taking cognizance. In the present case, the complaint was filed on 11.10.1993, but the Magistrate did not take cognizance until 09.11.1993, after the requisite 15-day period had elapsed. The High Court noted that the Magistrate's actions on 11.10.1993 and 18.10.1993 were procedural steps, and cognizance was effectively taken only on 09.11.1993 when the Magistrate examined the complainant and determined a prima facie case existed. Therefore, the High Court concluded that the complaint was validly instituted and the prosecution was legally launched. The appellate court's judgment was found to be based on a misconceived understanding of the law, equating the filing of the complaint with taking cognizance, which led to an incorrect decision. Conclusion: The High Court set aside and quashed the appellate court's judgment, reinstating the conviction and sentence passed by the Judicial Magistrate. The revision was allowed, ensuring that the trial, which resulted in the conviction of the accused, was based on a validly instituted complaint and legally sound prosecution.
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