2023 (8) TMI 1552 - HC - Indian Laws

Dishonour of Cheque - prayer to quash the summoning order - no finding recorded regarding filing of complaint against the applicant in connection with bouncing of the cheques upon the applicant although the same was said to be sent on 30.09.2019 - HELD THAT - This Court finds that the law has been well settled by the judgement Yogendra Pratap Singh vs. Savitri Pandey and Another 2014 (9) TMI 1129 - SUPREME COURT that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused. This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court in Yogendra Pratap Singh - versus- Savitri Pandey and another, the complaint filed by the complaint is pre-mature as the cause of action for filing the complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 23.10.2019 and accordingly, the complaint itself was pre- mature and hence not maintainable. Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the applicant could not have been summoned under the said Section. The question of any presumption regarding existing debt under Section 138 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable. Accordingly, the present application is hereby allowed.

Summary

Issues:
Validity of summoning order under Section 138 of Negotiable Instruments Act, 1881.

Analysis:
The applicant filed an application under Section 482 Cr.P.C. seeking to quash the summoning order dated 09.12.2019 passed by the Chief Judicial Magistrate. The applicant argued that the summoning order was perverse as it did not consider the timeline of events leading to the complaint. The applicant contended that the complaint was premature as it was filed on 23.10.2019, before the expiry of 15 days from the date of service of the legal notice on the accused, as required by Section 138 of the NI Act. The applicant relied on the judgment of the Hon'ble Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey, which emphasized the importance of fulfilling all the conditions specified in Section 138 for an offense to be considered committed.

The court noted that as per the Supreme Court judgment, the cause of action for filing a complaint under Section 138 of the NI Act could not arise before the expiry of 15 days from the date of service of the legal notice on the accused. Even considering the best-case scenario for the complainant, the court found that the complaint filed on 23.10.2019 was premature, as the 15-day period had not elapsed from the date of service of the notice. Therefore, the court held that the complaint itself was not maintainable on the day it was filed, and the applicant could not have been summoned under Section 138. The court emphasized that the condition precedent for filing a case under Section 138 had not been satisfied, rendering the complaint not maintainable.

Consequently, the court allowed the applicant's application and quashed the summoning order dated 09.12.2019 and further proceedings of the Complaint Case No.1701 of 2022 under Section 138 of the NI Act. The court's decision was based on the established legal principles regarding the timeline for filing a complaint under Section 138 and the necessity to fulfill all conditions before summoning an accused under the NI Act.