Complaint u/s 138 of NI Act filed before expiry of 15 days from date of notice is not maintainable: Supreme Court

Complaint u/s 138 of NI Act filed before expiry of 15 days from date of notice is not maintainable: Supreme Court

The Supreme Court in its recent judgement held that a cheque bounce complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque is not maintainable.

In this case, the complaint was filed before the expiry of fifteen days from the date of notice. The Trial court acquitted the accused. However, the High Court allowed the appeal filed by the complainant and convicted the accused.

The primary question before the Court was: Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned?

The bench comprising Justices DY Chandrachud and AS Bopanna noticed that this issue is no longer res integra as it is answered by a three judges bench in Yogendra Pratap Singh v Savitri Pandey (2014) 10 SCC 713. The court noticed the following observations made in the said judgment:

"Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines "complaint". According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed 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 the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, 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 NI 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 the 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.""

Another issue arose was whether the the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired?

Further placing reliance on the case Yogendra Pratap (supra), it was held:

"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."

While setting aside the High Court order, the Court observed that the complainant is at liberty to institute a fresh complaint