9911796707
TMI Blog2023 (8) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.09.2019 for return of his money but in response to the said notice a reply was returned on 16.10.2019 with wrong set of facts. Submission is that a complaint in this regard was filed on 23.10.2019. The learned counsel submits that at best the service of notice could have been presumed to have been served only on the date reply was sent and thereafter, 15 days' time was required to be given to the applicant to respond to the demand notice. He submits that the complaint case was filed on 23.10.2019 and as per the timeline, the complaint itself was premature. He submits that in the aforesaid circumstances, the summoning of the applicant under section 138 of Negotiable Instruments Act, 1881, cannot be sustained and calls for interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability. (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as noted in the judgment of this Court in Kusum Ingots Alloys Ltd. 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. 37. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia and so also the judgments of various High Courts following Narsingh Das Tapadia 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court also finds that even if the best case of the complainant is taken into consideration, then the date of notice sent by the complainant is 30.09.2019, the date of presumed/deemed service of legal notice would be the day/ date on which the reply to the legal notice was sent and 15 days from the date of service of notice would expire only on or about 13.11.2019 and present complaint case has been filed on 23.10.2019. This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court reported in (2014) 10 SCC 713 (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 Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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