Breaking; Complaint for Dis-honour of Cheque [S.138 NI ACT] is not maintainable before the expiry of 15 Days Notice Period. Remedy is not to re-present but to file fresh Complaint. Jt in Narsingh Das Tapadia (2000)Overruled [Read the Judgment]

Resolving the conflict between two-Judge Bench Judgments in Narsingh Das Tapadia v. Goverdhan Das Partani [(2000) 7 SCC 183] and Sarav Investment & Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund [(2007) 14 SCC 753], a three Judge Bench of Supreme Court held that cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 cannot 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 Negotiable Instruments Act 1881. It is also held 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.The Bench headed by Chief Justice of India was considering a reference from a two Judge Bench in Yogendra Pratap Singh Vs. Savitri Pandey in which the following questions were referred for the consideration of the larger Bench(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,(ii) If answer to question No.1 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?The Bench also noticed the judgments of High Courts of Calcutta, Orissa, Bombay, Punjab and Haryana, Andhra Pradesh, Allahabad, Gauhati, Rajasthan, Delhi, Madhya Pradesh, Himachal Pradesh, Madras, Jammu and Kashmir and Karnataka and observed that judicial opinion on the first question was split among the High Courts. In Sarav Investment & Financial Consultancy the Supreme Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days was imperative in character. But in Sarav Investment & Financial Consultancy, there is no reference of the decision of Supreme Court in Narsingh Das Tapadia which took the opposite view.Chief Justice Lodha who penned the Judgment also discussed almost all the Judgments [by Various High Courts] on the point. The Court posed the question "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 and answered it as follows;" Section 2(d) of the Code (Cr PC) 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 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 law. It is not the question of prematurity of the complaint where it is filed before 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 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"."A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been...

Breaking; Complaint for Dis-honour of Cheque [S.138 NI ACT] is not maintainable before the expiry of 15 Days Notice Period. Remedy is not to re-present but to file fresh Complaint. Jt in Narsingh Das Tapadia (2000)Overruled [Read the Judgment]

M.A.Rashid

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