2022 (11) TMI 396 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - existence of legally enforceable debt or not - time limit for filing of complaint from the date of cause of action - HELD THAT - The facts of the YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY ANR. 2014 (9) TMI 1129 - SUPREME COURT is almost identical to the case in hand. In Yogendra Pratap Singh case, statutory notice served on the accused on 23/09/2008 and the complaint was presented on 07/10/2008. In the case in hand, the statutory notice was served on 05/02/2019 and the complaint was presented on 20/02/2019. The 15 days time from the date of receipt of the notice after excluding the date of receipt commenced from 06/02/2019 and expired on 20/02/2019. Only thereafter, the cause of action to file the complaint arises. Since the complaint was presented on 20/02/2019 a day before the cause of action, the complaint is non-est in law as per the dictum of the Supreme Court in Yogendra Pratap Singh case. The plea of the Learned Counsel for the respondent/complainant regarding the right to file fresh complaint, it is to be noted that under Section 142(b) of the Negotiable Instruments Act, the complaint ought to be filed in writing within one month from the date of cause of action as prescribed under clause (c) of Section 138 of Negotiable Instruments Act. In case, complainant is unable to file the complaint within the period of one month and if the complainant satisfies Court that he had sufficient cause for not making a complaint within such period, the proviso to Section 142(b) of Negotiable Instruments Act enables the Court to take cognizance of the complaint beyond the time prescribed. It is concluded with the words of the Hon'ble Supreme Court in Yogendra Pratap Singh Case, 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. The complaint under Section 138 of Negotiable Instruments Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of the law and criminal proceedings initiated on such complaint are liable to be quashed. These Criminal Original Petitions are Allowed.

Summary

Issues Involved:
1. Validity of the private complaint filed under Section 138 of the Negotiable Instruments Act, 1881.
2. Timeliness of the complaint in relation to the statutory notice period.
3. Legal consequences of filing the complaint before the cause of action arises.

Detailed Analysis:

1. Validity of the Private Complaint under Section 138 of the Negotiable Instruments Act, 1881:
The petitioner sought to quash the private complaint filed under Section 138 of the Negotiable Instruments Act, 1881, arguing that the cheque was not issued for any enforceable debt. The complaint was based on two post-dated cheques issued for the screening rights of a movie, which were dishonored with the reason "payment stopped by the drawer." The statutory notice was sent, and a reply was received denying liability.

2. Timeliness of the Complaint in Relation to the Statutory Notice Period:
The petitioner contended that the complaint was filed prematurely, before the expiry of 15 days from the date of receipt of the statutory notice, making it non-est in law. Section 138(c) of the Negotiable Instruments Act specifies that the cause of action arises only after the expiry of 15 days from the receipt of the notice. In this case, the notice was received on 05/02/2019, and the complaint was filed on 20/02/2019, one day before the cause of action arose on 21/02/2019.

3. Legal Consequences of Filing the Complaint Before the Cause of Action Arises:
The court referenced the Supreme Court judgments in Yogendra Pratap Singh vs. Savitri Pandey and Econ Antri Limited vs. Rom Industries Limited, which clarified that a complaint filed before the expiry of 15 days from the date of receipt of the notice is not a valid complaint under law. The court reiterated that the complaint must be filed within one month from the date of cause of action, and any complaint filed prematurely is non-est in law.

The court also discussed the possibility of filing a fresh complaint, noting that Section 142(b) of the Negotiable Instruments Act allows for the filing of a complaint beyond the prescribed period if the complainant can show sufficient cause for the delay.

Conclusion:
The court concluded that the complaint filed on 20/02/2019, a day before the cause of action arose, is non-est in law. The criminal proceedings initiated on such a complaint are liable to be quashed. Consequently, the petitions were allowed, and the complaints in S.T.C.No.410/2019 & S.T.C.No.411/2019 were quashed, with the connected miscellaneous petitions closed.