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2026 Supreme(Online)(Raj) 11462

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

[2026:RJ-JP:14301]

S.B. Criminal Miscellaneous (Petition) No. 919/2019

Smt. Meena Kumari W/o Shri Tikam Das, Aged About 41 Years,
R/o 1128/13 Gautam Nagar, Bhangawanganj, Ajmer, Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Smt. Neetu W/o Shri Anand, Aged About 40 Years,
Resident Of Jamalpura, Gangamai Ka Mandir, Near
Fatehpuriya School, First Gate, Beawar, District Ajmer. At
Present Late Mohanlal Badariya House, Opposite Bhairu
Ji, Raigar Basti, , Bhagawanganj Ajmer, District Ajmer.
----Respondents

For Petitioner(s) : Mr. Chain Singh Rathore
For Respondent(s) : Mr. Vivek Choudhary, PP

JUSTICE ANOOP KUMAR DHAND

07/04/2026

Advocates:
For the Appellants/Petitioners: Chain Singh Rathore
For the Respondents: Vivek Choudhary

A complaint under Section 138 of the Negotiable Instruments Act filed before the expiry of the 15-day notice period is not maintainable, but the complainant is entitled to file a fresh complaint, with the delay in such filing being condoned under Section 142(b) of the Act.

Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 142(b) - Dishonour of cheque - Premature filing of complaint - Effect of - A complaint filed before the expiry of the statutory 15-day notice period is not a complaint in the eye of law and cognizance cannot be taken - However, such premature filing does not render the complainant remediless - Complainant is entitled to file a fresh complaint on the same cause of action, and any delay in filing such fresh complaint is to be condoned under the proviso to Section 142(b) of the Act.

Facts of the case:
The petitioner filed a complaint under Section 138 of the Act, which was dismissed by the Trial Court as premature because it was filed on the 14th day after the notice period instead of waiting for the full 15 days. This rejection was upheld by the Revisional Court. The petitioner approached the High Court challenging these orders.

Findings of Court:
The court found that while a premature complaint is not maintainable under the Act, the Trial Court erred in simply rejecting it without granting the necessary liberty to file a fresh complaint. Relying on settled law, the High Court held that the petitioner is entitled to file a fresh complaint and the delay occasioned by the aborted litigation should be treated as condoned.

Issues: Whether a complaint under Section 138 filed before the expiry of the 15-day notice period is maintainable, and whether the complainant has a remedy to file a fresh complaint upon such rejection.

Ratio Decidendi: A complaint filed before the expiry of 15 days from the date of service of notice is not maintainable as it discloses no cause of action; however, the principle of 'Ubi Jus Ibi Remedium' entitles the complainant to file a fresh complaint, with the delay being condoned under the provision of Section 142(b).

Result: Petition allowed; impugned order modified granting liberty to file a fresh complaint.

Order

07/04/2026

1. By way of filing the instant petition, a challenge has been led to the impugned order dated 05.02.2016, passed by Special Judicial Magistrate (NI Act Cases) No. 3, Ajmer, in Criminal Case No.423/2015, by which the complaint submitted by the complainant-petitioner (hereinafter referred to as the ‘complainant’) under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as “the Act of 1881”) has been rejected by treating the same as premature.

2. Aggrieved by the aforesaid order, a revision petition was submitted by the complainant before the Revisional Court i.e., Court of District & Sessions Judge, Ajmer, however, the same was rejected by the Court of Additional District & Sessions Judge No.4, Ajmer, vide impugned order dated 01.10.2018 and the impugned order dated 05.02.2016 passed by the learned Magistrate was upheld.

3. Learned counsel for the complainant submits that a cheque dated 22.04.2013 was issued by the accused-respondent (hereinafter referred to as the ‘accused’) to the complainant as repayment of a loan and the same was presented by the complainant in his bank on the same day i.e. 22.04.2013. However, the aforementioned cheque was dishonoured by the bank vide return memo dated 24.04.2013 on the grounds that the account that issued the cheque was inoperative. This return memo was received by the complainant on 26.04.2013. Thereafter, a legal notice was sent by the complainant to the accused on 14.05.2013, however, the accused denied to accept the same on 15.05.2013. Subsequently, a complaint under Section 138 of the Negotiable Instruments Act was submitted by the complainant before the Court of Judicial Magistrate No.1, Ajmer on 28.05.2013. Counsel submits that as per the provisions contained under Section 138 of the Negotiable Instruments Act, a complaint is liable to be filed after 15 days from the date of receipt of notice and since the complaint was filed by the complainant on the 14th day, hence, treating the complaint as pre-mature, in light of the judgment passed by the Hon’ble Apex Court in the case of Yagendra Pratap Singh Vs. Savitri Pandey reported in (2014) 10 SCC 713, the same has been rejected by the Special Judicial Magistrate (N.I. Act Cases) No.3, Ajmer by treating the same as pre-mature and cognizance has not been taken against the accused. Counsel submits that instead of rejecting the complaint filed by the complainant, the learned Magistrate could have returned the complaint to the complainant with liberty to file the same before the Concerned Court after the notice period. Hence, under these circumstances, interference of this Court is warranted.

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

5. Before deciding the issue in question, it would be gainful to quote the provisions contained under Sections 138 and 142 of the Act of 1881. For ready reference, Sections 138 and 142 of the Act of 1881 are reproduced as under:-

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a peri

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2026 Supreme(Online)(Raj) 11462

A complaint under Section 138 of the Negotiable Instruments Act filed before the expiry of the 15-day notice period is not maintainable, but the complainant is entitled to file a fresh complaint, with the delay in such filing being condoned under Section 142(b) of the Act.

Cases Referred (1)