IMPORTANT POINT
Dishonour of cheque – Complaint is not maintainable before expiry of period of fifteen days from date of receipt of notice by drawer of cheque – Remedy is to file fresh complaint.

ORDER :

1. Leave granted.

2. The appeal arises from a judgment dated 28 November 2018 of a Single Judge of the High Court of Chhattisgarh reversing the acquittal of the appellant for an offence punishable under Section 138 of the Negotiable Instruments Act 1881¹[“NI Act”].

3. The facts lie on a narrow compass. On 7 November 2005, a notice was addressed by the respondent to the appellant alleging that the appellant had taken a cash loan of Rs 2.5 lakhs and had furnished a cheque dated 28 October 2005 towards repayment. The notice alleged that the cheque was returned by the bank to the respondent due to insufficiency of funds in the account of the appellant. The notice dated 7 November 2005 was received by the appellant on 8 November 2005. The respondent instituted a complaint against the appellant under Section 138 of the NI Act on 22 November 2005. On 1 February 2011, the trial court acquitted the appellant. The order of acquittal was questioned before the High Court in appeal. By a judgment dated 28 November 2018, the High Court has allowed the appeal and convicted the appellant for an offence punishable under Section 138 of the NI Act awarding a sentence of a fine in the amount of Rs 3 lakhs.

4. After notice was issued on 15 February 2019, the respondent had communicated to the Registry indicating that he was seventy nine years of age and did not have the resources to defend his rights before this Court by engaging counsel. In the circumstances, by an order dated 15 July 2020, the Registry was requested to appoint counsel from the panel of legal aid advocates.

5. The issue which is raised in this appeal is no longer res integra and is covered by a three-Judge bench decision of this Court in Yogendra Pratap Singh v Savitri Pandey and Another, (2014) 10 SCC 713. Two issues were formulated for decision before the three-Judge Bench, which were:

“1.1. (i) 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,

1.2. (ii) If answer to Question 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?”

6. The first issue was resolved by paragraph 35 of the judgment, which is extracted below:

“35. 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 filed 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 the law. It is not the question of prematurity of the complaint where it is filed before the 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 the law, obviously, no cogniza