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ANOOP KUMAR DHAND
Moolchand – Appellant
Versus
Bhairulal – Respondent
A complaint under Section 138 of the Negotiable Instruments Act filed before the expiry of 15 days from the receipt of notice by the drawer is premature, not maintainable in the eye of law, and the court cannot take cognizance of it. (!) (!) [1][2][3][4][7][8][9][10][11][14][21]
The cause of action under Section 138(c) arises only after the drawer fails to make payment within 15 days of receiving the notice, and a complaint must be filed within one month from that date under Section 142(b). (!) (!) (!) [10][11][12][14]
Where a premature complaint is filed, the complainant is granted liberty to file a fresh complaint within one month from the date of the court's decision quashing the original proceedings, and any delay is deemed condoned under the proviso to Section 142(b). (!) [11][12][13][14][21]
The principle of "Ubi Jus Ibi Remedium" (there is no wrong without a remedy) applies, ensuring a complainant is not left remediless due to filing a premature complaint on a legally enforceable debt from a dishonoured cheque. (!) (!) [16][17][18][20]
The trial court convicted the accused under Section 138, sentencing to one year simple imprisonment and fine of Rs. 5,00,000/-, but the appellate court acquitted on grounds of prematurity without granting liberty for a fresh complaint.[1][2][3][7][13][21]
In this case, notice was sent on 28.08.2012, received on 01.09.2012, reply sent on 06.09.2012, and complaint filed on 14.09.2012, which was before expiry of 15 days from notice receipt.[3][4][7]
The High Court set aside the appellate court's acquittal, restored the matter by modifying the trial court's judgment to grant liberty for fresh complaint within one month, with expeditious disposal expected within one year.[21][22][23][24]
Original certified documents to be returned to complainant after retaining certified copies.[22]
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 acquitt
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.
A complaint under Section 138 of the Negotiable Instruments Act, filed before the statutory period of notice has expired, is not maintainable, but a fresh complaint can be filed within one month if t....
The denial of liability and refusal to pay the cheque amounts by the accused constituted a valid cause of action for filing the complaint under Section 138 of the NI Act, despite being filed before t....
A complaint filed under S.138 prior to the cause of action is not necessarily premature and can await maturity without dismissing the complaint.
A complaint under Section 138 of the Negotiable Instruments Act is not maintainable if filed before the expiry of the statutory notice period, which affects the cause of action.
A complaint under Section 138 of the N.I. Act is not maintainable if filed before the statutory fifteen-day notice period has expired, rendering any cognizance taken by the court invalid.
The cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act cannot arise before expiry of 15 days from the date of service of notice upon the accused.
The main legal point established in the judgment is the requirement for the complainant to wait for the stipulated 15-day period before filing a case under section 138 of the Negotiable Instruments A....
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