It is common knowledge that the complainants, in undue hurry, file the criminal complaint in the Court u/s 138 of the Negotiable Instruments Act, 1881 before the expiry of the mandatory period of 15 days from the date of receipt of the demand notice by the accused. The question that arises is whether the Court can take cognizance of such a premature complaint.

It would be trite to refer to Apex Court judgment in the case of Narsingh Das
Tapadia Vs. Goverdhan Das Partani and Another (2000) 7 SCC 183, wherein the Court while dealing with the controversy in hand held that where the complaint was filed before the arising of cause of action in terms of Section 138 proviso (c), held that instead of dismissing the complaint, taking of cognizance could be postponed till the arising of cause of action.

The Court ruled that in the instant case although the complaint was filed before the expiry of the statutory period prescribed in proviso (c) to Section 138, trial court had taken cognizance after the expiry of that period. Hence, the Apex Court upheld the conviction by the trial and appellate courts and ruled that the High Court had erred in reversing the said decisions on the ground that complaint was pre mature. The Court observed thus:

"Mere presentation of the complaint in the court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed.... "

According to the dictum of the Apex Court, for more than a decade, this was the binding precedent and but some High Courts expressed doubt about the correctness of Narsingh Das (supra) and in the case of Yogendra Pratap Singh Vs. Savitri Pandey and Another (2012) 4 SCALE 183 a two Judge Bench of the Apex Court vide order dated 03.04.2012 referred the matter to a larger bench to finally decide the controversy. The Apex Court formulated the following two questions for consideration:

1. 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
2. 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 larger Bench of the Apex Court in Yogendra Pratap Singh vs. Savitri Pandey and Another, 2015 (1) SCC (CRI) 226 decided the matter and dissented with the earlier view in Narsingh Das (supra). The Court in an elaborate and well- reasoned order held thus;

35. Insofar as the present reference is concerned, the debate broadly centers around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour.

36. 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? Section 2(d) of the Code 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.

37. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance.

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 committed unless and until the period of 15 days, as prescribed under clause (c) of 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.19 and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.

38. 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.

The aforementioned judgment in Yogendra Pratap Singh (supra) has been followed in the recent judgment of the Apex Court in Gajanand Burange Vs. Laxmi Chand Goyal in 2022 LiveLaw (SC) 682; 2022 SCC Online SC 1711 it has been observed in para 7 as under:

In the present case, while the notice was
received by appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 2005, but was filed on 22 November 2005. In view of the legal bar which is created by Section 142 of the NI Act, as explained in the three-Judge Bench decision of this Court, taking of cognizance by the Court was contrary to law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receipt by the appellant.

Setting aside the judgment of High Court in reversing the judgment of acquittal passed by the Trial Court, the Apex Court granted the complainant liberty to institute fresh complaint. The Apex Court ordered thus:

10 (ii) The respondent would be at liberty to institute a fresh complaint and since the earlier complaint could not be presented within the time prescribed by Section 142(b) of the NI Act, the respondent would be at liberty to seek the benefit of the proviso by satisfying the trial court of sufficient cause for the delay in instituting the complaint.

11 In the event that the second complaint is filed within a period of two months from the date of this order, we request the trial court to dispose of the complaint within a period of six months.

The said judgment has also been followed by the Apex Court in Kailash Jaiswal vs Rahul Sripat Special Leave to Appeal (Crl.) No. 4038/2016 decided on 29 June, 2016. It has been also followed unreservedly by all the High courts in more than 200 matters decided by them.

Thus, it is no longer 'Res Integra' that complaint filed before expiry of 15 days period from Receipt of Notice is not legally cognizable. However, in view Section 142(b) of the NI Act, the Courts can grant them time to file a fresh complaint.

Written By: Inder Chand Jain
Ph No: 8279945021, Email: [email protected]