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 the complainant satisfies conditions.

ORDER :

ANOOP KUMAR DHAND, J.

1. Since the common question of law and facts are involved in these appeals, hence, with the consent of counsel for the parties, these matters are taken up together for final disposal and the same are being decided by this common order.

2. For the sake of convenience, the facts narrated in S.B. Criminal Appeal No.2827/2023 are taken into consideration.

3. The facts narrated in this criminal appeal indicates that a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act of 1881”) was submitted by the appellant against the respondent when the cheque issued by the respondent was dis-honoured.

4. The complaint was filed by the appellant in the year 2016, but the same remained pending before the Court of Special Metropolitan Magistrate (N.I. Act Cases) No.6, Jaipur Metropolitan I and thereafter the same was dismissed by treating as pre- mature since the complaint was filed by the appellant prior to the expiry of the statutory period of issuing notice to the respondent.

5. Learned counsel for the appellant submits that, under such circumstances, instead of rejecting the complaint and instead of acquitting the accused-respondent from the charge under Section 138 of the Act of 1881, a liberty could have been granted to the appellant to file fresh complaint in light of the proposition of law as laid down by the Hon’ble Apex Court in the case of Yogendra Pratap Singh Vs. Savitri Pandey reported in (2015) AIR (SC) 157 and the judgment passed by this Court in the case of Rajkumar Mantri Vs. Hanuman Prasada Dhobi while deciding S.B. Criminal Appeal No.59/2022. Learned counsel submits that in view of the submissions made hereinabove, the impugned judgment passed by the Court below be modified and a liberty be granted to the complainant to file fresh complaint against the accused-respondent within the stipulated time.

6. Per contra, learned counsel appearing on behalf of the accused-respondent opposes the submissions raised by the counsel for the appellant, but he is not in a position to controvert the submissions made by counsel for the appellant and the settled proposition of law as laid down by the Hon’ble Apex Court in the case of Yogendra Pratap Singh (supra).

7. Heard and considered the submissions made at the Bar and perused the material available on record.

8. Looking to the fact that the controversy involved in this appeal is no more res integra as the same has been decided by the Hon’ble Apex Court in the case of Yogendra Pratap Singh (supra) as well as by this Court in the case of Raj Kumar Mantri (supra). For ready reference, the observations and directions issued by the Hon’ble Apex Court in the case of Yogendra Pratap Singh (supra). From Paragraph 9 to 24 are reproduced as under:-

“9. The issue involved in this appeal is no more res integra as this issue came before the Hon’ble Apex Court in the case of Yogendra Pratap Singh (supra) where the Apex Court formulated the following two questions for consideration:

“(i) Can cognizance of an offence punishable u/s 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 u/s 142(b) for the filing of such a complaint has expired?”

10. The Apex Court in the case of Yogendra Pratap Singh (supra) while interpreting the provisi