Complaint under Section 138 NI Act rejected for prematurity. My advocate presented a complaint for the offence of cheque bounce and the court has issued summons to the accused. The accused appeared in the court two years only after issuance of non bailable warrant. When the accused appeared in the court through his advocate he took copies of the complaint. He immediately moved a petition in the high court for quashing of the complaint. I appeared in the high court and argued that the trial court has already taken cognisance after lapse 27 days from the date of receiving of demand notice. The high court said that the complaint was filed on fourteenth day instead of fifteen days. My advocate argued that cognisance has been taken and the accused has appeared through counsel but the high court has dismissed my complaint. Sir, in this situation what should I do to carry on criminal proceedings against the accused because he has cheated and taken my hard earned money.
Asked from: Maharashtra
Your complaint has been filed before the expiration of the mandatory fifteen-day period from the date of receiving the demand notice. According to Section 138 of the Negotiable Instruments Act, the cause of action for initiating a criminal case against the accused for the dishonor of a cheque arises when the drawee of the cheque fails to pay the amount within fifteen days from the date of receiving of demand notice.
When the bank returns the cheque unpaid due to insufficient funds or any other reason, the drawer of the cheque must serve a demand notice to the drawee. At this stage, no offence is considered to have been committed by the drawee. Upon receiving the demand notice, the drawee must discharge their liability by paying the amount mentioned in the cheque to the drawer. If the drawee pays the amount, no offence has been committed, and no cause of action arises.
Also read: Compromise in cheque bounce after conviction
If the drawee fails to pay the amount within fifteen days from the date of receiving the notice, the offence is considered to have been committed on the fifteenth day. Unless and until the offence has been committed or a cause of action has arisen, a complaint for that offence cannot be filed. According to Section 190 of the Code of Criminal Procedure, the magistrate can take cognizance of the offence only when it has been committed.
In the Sarav Investment and Financial Consultancy case [(2007) 14 SCC 753], the Supreme Court held that the Negotiable Instruments Act is a special enactment, and Section 138 provides a penal provision; therefore, it must be strictly construed. Consequently, unless and until the offence is committed or a cause of action arises, no complaint can be filed. If a complaint is filed before the expiration of fifteen days, it is not considered a valid complaint in the eyes of the law.
Also read: Unreasonable condition imposed on bail order
In this situation, you should file a fresh complaint within thirty days from the date of the rejection of the original complaint. There is no bar to filing a fresh complaint if the previous complaint was dismissed due to prematurity.
In Yogendra Pratap Singh vs. Savitri Pandey and Others [(2014) 10 SCC 713], the Supreme Court held that if a complaint is filed before the completion of the fifteen-day period and is subsequently dismissed, the aggrieved person may file a fresh complaint within thirty days from the date of the order of dismissal. Therefore, if a complaint under Section 138 NI Act rejected for prematurity the drawer can file a fresh complaint.
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