Mohd. Usman v. State of Uttarakhand another

herein that it is settled law of land and the provisions of section 138 of NI Act mandates that no complaint can be filed for an offence u/s 138 of NI Act unless period of 15 days from the date on which legal notice has been served has elapsed, however in the instant case since complaint filed u/s 138 of NI Act before the expiry of 16 days from the date on which notice has been served on drawer/applicant is no complaint in eye of law, further no cognizance of an offence can be taken on the basis of such complaint, therefore, the summoning order is liable to be quashed.

11. That it is also relevant to mention herein that upon perusal of postal receipt it seems that the legal notice is dispatched by the complainant on 27.07.2015, since it is nowhere mentioned that on which date the legal notice was served upon the applicant therefore, the complaint itself is not tenable in the eyes of law and taking cognizance by court is also bad in law because the provision of Ni Act specifically stipulates that the cause of action would arose to file a complaint u/s 138 only from the date of serving of notice to the accused, thus considering the same analogy in the present case the impugned summoning order is liable to be quashed.

12. That since the complaint had been filed within 15 days of service of notice, the same was clearly premature It is submitted that for instance the legal notice was sent by the complainant on 27 07 2015 and even if it believes that on the next day ie 28.07.2015 the accused received the said notice then the date on which the notice was served upon the accused should be excluded and thus 15 days of notice will be calculated from 29.07.2015 which comes around on 13.08.2015, however in the instant case the respondent has filed the Criminal Complaint against the applicant on 11.08.2015 Much prior to 3 completion of the 15 days of service of notice, therefore, the impugned summoning order is liable to be quashed in toto.

13. That since in the complaint itself it is nowhere mentioned that on which date the notice was received by the applicant, therefore, taking cognizance of the court below and summoning the applicant to face the trial is bad in law.

14. That it is also submitted that till 30.07.2015 the applicant has not received any legal notice and thus complaint filed by the complainant on 11.08.2015 is premature and thus legally bad, therefore, the complaint is liable to be quashed and entire proceedings relating thereto in terms its order impugned is also liable to be quashed.

5. The counsel for the respondent does not dispute the aforesaid facts.

6. Counsel for the applicant has placed reliance on the Judgment and Order passed by Hon’ble Apex Court in the case of Yogendra Pratap Singh vs. Savitri Pandey and another, reported in (2014) 10 Supreme Court Case 713, in which, the Hon’ble Apex Court framed following two questions consideration: “1.1 (I) 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? and, If answer to question No.1 is in the negative, (ii) can 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?” 4

7. Hon’ble Apex Court in para 37 to 41 of the said Judgment has held as hereunder: “37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia1 and so also the judgments of various High Courts following Narsingh Das Tapadia1 that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused the same is premature and if on the date of taking cognizance a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled.

38. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy2 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, 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. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed.

39. Our answer to question (i) is, therefore, in the negative.

40. The other question is that if the answer to question (i) is in the negative, can 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.

41. 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 5 142(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 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 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.” to Section 138 is not maintainable,

8. In view of the judgment of Hon’ble Apex Court referred above, as admittedly the Complaint has been filed before the expiry of 15 days of service of notice and the Compliant could not be treated as Complaint in the eyes of Law, as such, the summoning order dated

08.09.2015 and the entire proceedings pending before the learned Additional Chief Judicial Magistrate, Vikas Nagar, District Dehradun, in Criminal Complaint Case No. 424 of 2015, Saleem Ahmad vs. Mohd. Usman, under Section 138 of the Negotiable Instruments Act, 1881, against the applicant are quashed.

9. The Criminal Misc. Application is allowed. (SUBHASH UPADHYAY, J.) Date: 09.09.2025 Kaushal 6