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2022 (11) TMI 396 - HC - Indian LawsDishonor of Cheque - insufficient funds - existence of legally enforceable debt or not - time limit for filing of complaint from the date of cause of action - HELD THAT:- The facts of the YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY & ANR. [2014 (9) TMI 1129 - SUPREME COURT] is almost identical to the case in hand. In Yogendra Pratap Singh case, statutory notice served on the accused on 23/09/2008 and the complaint was presented on 07/10/2008. In the case in hand, the statutory notice was served on 05/02/2019 and the complaint was presented on 20/02/2019. The 15 days time from the date of receipt of the notice after excluding the date of receipt commenced from 06/02/2019 and expired on 20/02/2019. Only thereafter, the cause of action to file the complaint arises. Since the complaint was presented on 20/02/2019 a day before the cause of action, the complaint is non-est in law as per the dictum of the Supreme Court in Yogendra Pratap Singh case. The plea of the Learned Counsel for the respondent/complainant regarding the right to file fresh complaint, it is to be noted that under Section 142(b) of the Negotiable Instruments Act, the complaint ought to be filed in writing within one month from the date of cause of action as prescribed under clause (c) of Section 138 of Negotiable Instruments Act. In case, complainant is unable to file the complaint within the period of one month and if the complainant satisfies Court that he had sufficient cause for not making a complaint within such period, the proviso to Section 142(b) of Negotiable Instruments Act enables the Court to take cognizance of the complaint beyond the time prescribed. It is concluded with the words of the Hon'ble Supreme Court in Yogendra Pratap Singh Case, ‘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 complaint under Section 138 of Negotiable Instruments Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of the law and criminal proceedings initiated on such complaint are liable to be quashed. These Criminal Original Petitions are Allowed.
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