Premature Complain Filing Under Section 138 Of Negotiable Instrument Act Stands Dismissed
The Apex court held a complaint filed before the expiry of 15 days from the date of receipt of notice under clause(c) of Section 138 of the negotiable Instrument Act is not maintainable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
Yogendra Pratap Singh … Appellant
Versus
Savitri Pandey & Anr. … Respondent
CRIMINAL APPEAL NO. 1924 OF 2014 Premature Complain Filing Under Section 138 Of Negotiable Instrument Act Stands Dismissed
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 2 Page 26 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.
Other Case Law 138 NI Act
