TMI Blog2022 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. - Crl.O.P.Nos.16252 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be made within one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138 of N.I. 5. As per proviso to clause (c) of Section 138, the cause of action shall arise only on expiry of 15 days from the date of receipt of the notice by the accused. In the instant case, the notice was received by the accused on 05/02/2019. Therefore, the cause of action arose only on the expiry of the 15th day, i.e., 21/02/2019. Since, the impugned complaint was filed on 20/02/2019 prematurely a day before cause of action arose, the said complaint is liable to be quashed. 6. In support of his submission, the Learned Counsel for the petitioner/accused had relied upon the judgment of the Supreme Court rendered in Yogendra Pratap Singh -vs- Savitri Pandey and another reported in 2014 [10] SCC 713 and Econ Antri Limited -vs- Rom Industries Limited and another reported in 2014[11] SCC 769. 7. In response to the above submissions, the Learned Counsel for the complainant/respondent relying upon the judgement of the Hon'ble Supreme Court rendered in Rathish Babu Unnikrishnan -vs- State (Govt. of NCT of Delhi) and another reported in (2022 SCC ONLINE SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. Section 142 of Negotiable Instruments Act, 1881:- 142. Cognizance of offences.-[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 11. While considering the question can an offence under Section 138 of the Negotiable Instruments Act, be said to have been committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots Alloys Ltd. [Kusum Ingots Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745..... 12. The facts of the Yogendra Pratap Singh case cited supra, 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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