IMPORTANT POINT
A complaint filed before the expiry of 15 days from the date on which notice has been served on the drawer/accused is not maintainable, and the complainant's remedy is to file a fresh complaint within the prescribed time or seek the benefit of the proviso by satisfying the court of sufficient cause for the delay in instituting the complaint.

Navin Chawla, J. (Oral)

1. This petition has been filed under Section 482 of the Code of Criminal Procedure (in short, `Cr.P.C.') praying for quashing of the summoning order dated 09.05.2019 passed by the learned Metropolitan Magistrate-04 (NI Act), Central, Tis Hazari Courts, Delhi in CC No.15240/2018, titled Bank of Baroda v. Dev Vart, as also the abovesaid Criminal Complaint itself.

2. The learned counsel for the petitioner submits that in the present case, pursuant to the return of the cheque issued by the petitioner from the bank, the respondent had issued a demand notice dated 25.07.2018 to the petitioner. The said notice, though posted on 25.07.2018, was received by the petitioner on 27.07.2018. She submits that in terms of the Proviso (c) to Section 138 of the Negotiable Instruments Act, 1881 (in short, `NI Act'), the cause of action for filing of the complaint would arise only after 15 days from the receipt of the notice by the petitioner, that is, on or after 11.08.2018.

3. In the present case, however, the respondent filed the subject complaint on 10.08.2018, that is, before of the cause of action for filing the same had arisen. Placing reliance on the judgment of the Supreme Court in Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, she submits that in similar circumstances, the Supreme Court has held that a complaint filed before the expiry of 15 days of service of notice cannot be treated as a complaint in the eyes of law and criminal proceedings initiated on such complaint are liable to be quashed.

4. The learned counsel for the respondent does not join issue with the petitioner on the above. He, however, submits that the respondent would be entitled to file a fresh complaint on the basis of the same cause of action, seeking extension of time prescribed by Section 142(b) of the NI Act. He places reliance on the judgment of the Supreme Court in Gajanand Burange v. Laxmi Chand Goyal, (2022) SCC OnLine SC 1711, to submit that as the complaint has been pending for a long time, a direction be issued that in case the respondent files a complaint, the same be disposed of expeditiously.

5. I have considered the submissions made by the learned counsels for the parties.

6. It is not denied that 15 days' period from the receipt of the notice as prescribed in Proviso (c) to Section 138 of the NI Act would have expired on 11.08.2018, and the complaint has been filed by the respondent on 10.08.2018, that is, prior to the cause of action arising for filing of the Complaint in terms of Section 142(b) of the NI Act.

7. The Supreme Court in Yogendra Pratap Singh (supra), framed the following questions:

"...The Court formulated the following two questions for consideration:

(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,

(ii) 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?"

8. Answering the first question, the Supreme Court has held as under:

"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