IMPORTANT POINT
A complaint under Section 138 filed before the expiry of 15 days is invalid; the complainant may file a fresh complaint within one month from the decision.

ORDER :

Anoop Kumar Dhand, J.

There is no wrong without a remedy. Where there is a legal right, there is a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. The principle of Ubi Jus Ibi Remedium is recognised as a fundamental principle of the theory of law and philosophy. It is the Court's responsibility to protect and preserve the right of parties and to support them, rather than refuse them relief.

The legal issue in this appeal is "Whether the complainant can be left remediless, if he/she has filed a premature complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act of 1881')."

Aggrieved by the judgment dated 24.05.2022 passed by the learned Additional Sessions Judge, Newai, District Tonk (for short 'the Appellate Court') in criminal Appeal No. 72/2018, the instant criminal appeal has been filed by the appellant.

2. By way of passing the impugned judgment dated 24.05.2022, the Appellate Court has allowed the appeal filed by the accused-respondent against the judgment dated 27.02.2018 passed by the learned Additional Chief Judicial Magistrate, Newai, District Tonk in Criminal Case No. 27/2013 and acquitted the accused respondent from the charge under Section 138 of the Act of 1881 on a technical ground that a premature complaint was filed by the complainant-appellant.

3. The facts lie on a narrow compass that a cheque of Rs. 3,50,000/- was issued by the accused-respondent in favour of the complainant-appellant and when the said cheque was presented in the Bank, the same was dishonoured on the ground of "no balance" in the bank account of the accused-respondent. Counsel submits that after receiving the aforesaid intimation, a legal notice under Section 138 of the Act of 1881 was given to the accused-respondent by the complainant-appellant on 28.08.2012 and the same was received by the accused-respondent on 01.09.2012 and thereafter, the accused-respondent submitted reply to the aforesaid legal notice on 06.09.2012 and denied the transaction and issuance of the cheque. Counsel submits that thereafter, a complaint under Section 138 of the Act of 1881 was submitted by the appellant against the accused-respondent before the Court of learned Additional Chief Judicial Magistrate, Newai, District Tonk on 14.09.2012. Counsel submits that the accused-respondent faced trial for the offence punishable under Section 138 of the Act of 1881, thereafter, he was found guilty for the aforesaid offence by the learned trial Judge and he was convicted under Section 138 of the Act of 1881 vide judgment dated 27.02.2018. He was sentenced to undergo one year simple imprisonment with fine of Rs. 5,00,000/-.

4. Counsel submits that against the aforesaid judgment, the accused-respondent submitted a criminal appeal before the Appellate Court and submitted an argument that a premature complaint was filed by the appellant on 14.09.2012, while the notice was received by the accused-respondent on 01.09.2012. Counsel submits that a premature complaint was filed prior to expiry of 15 days in terms of Section 138(3) of the Act of 1881, hence, under these circumstances, the premature complaint filed by the appellant was not sustainable in the eye of law. Counsel submits that in support of his contention, the accused-respondent placed reliance upon the judgment passed by the Hon'ble Apex Court in the case of Yagendra Pratap Singh v. Savitri Pandey reported in (2015) AIR (SC) 157. Counsel submits that misinterpreting the legal proposition of law as held by the Hon'ble Apex Court in the case of Yogendra Pratap Singh (supra), the Appellate Court rejected the complaint filed by the complainant-appellant and acquitted the accused-respondent from the charge under Section 138 of the Act of 1881. Counsel submits that as per the judgment passed by the Hon'ble Apex Court in the case of Yogendra Pratap Singh (supra), the Appellate Court was supposed to return the complaint to the appellant to file