The Himachal Pradesh High Court has held that a complaint under Section 138 of the Negotiable Instruments Act, 1881filed before the drawer is deemed to have received the statutory notice and before expiry of the prescribed 15-day payment period is premature. The Court observed that such a complaint cannot confer jurisdiction upon the Magistrate to take cognizance of the offence.

Justice Rakesh Kainthla remarked that: “The complaint was filed before the expiry of the statutory period of 15 days from the date of service of notice. Therefore, the complaint was premature and the Magistrate lacked jurisdiction to take cognizance of it.”

Background

The case arose from a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, alleging dishonour of a cheque issued by the accused. The statutory demand notice was sent to the accused, but the complaint was instituted before the notice was deemed to have been served and before expiry of the prescribed 15-day period for making payment. The accused challenged the proceedings on the ground that the complaint was premature.

The Court examined whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 had been instituted after fulfilment of the statutory requirements. It noted that the demand notice had not been deemed to have been served on the accused on the date when the complaint was filed.

The Court further observed that the 15-day period available to the drawer to make payment after receipt of the statutory notice had also not expired when the complaint was instituted. Therefore, the cause of action contemplated under Section 138 had not accrued at the time of filing the complaint.

In view of these circumstances, the Court held that the complaint was premature and that the Magistrate could not have taken cognizance of the offence on such a complaint. Accordingly, the proceedings arising from the premature complaint were held to be unsustainable.

Date of Decision: 07.09.2026