Pre-mature filing of complaint under Section 138 N I Act is liable to be dismissed #indianlaws

 Any complaint 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 law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is infact no complaint at all under law

What should be the fate of complaint filed against the offence of dishonour of cheque before the expiry of 15 days (notice period) stipulated in the notice required to be served upon the drawer of cheque in terms of Section 138(c) of the Negotiable Instruments Act, 1881 (Act) was the question before the Supreme Court. It was further to be decided that in the event of answer to the above is in negative, whether the Complainant can be allowed to present the complaint again irrespective of the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?

It was observed that bare reading of clause (c) of the proviso to Section 138 of the Act it gets amply clear that no complaint can be filed for an offence under Section 138 of the Act unless the period of 15 days has elapsed. Any complaint 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 law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is infact no complaint at all under law.

Section 142 of the Act 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 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 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.

Service of notice in terms of Section 138 proviso (b) of the Act is 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 is imperative in character. Accordingly, 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.

The first question was accordingly answered in negative. In regard to the second question the Court observed that Section 142 of the Act prescribes the mode and also the time within which a complaint for an offence under Section 138 of the 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.

Since answer to question (i) was in it was held 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 Act. This direction as held would be deemed to be applicable to all such pending cases where the complaint cannot proceed further in view of the Court’s answer to question (i) in negative. The complainant, as held in response to later question, 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.

[Yogendra Pratap Singh vs. Savitri Pandey & Anr.]
(SC, 19.09.2014)