THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CRIMINAL PETITION No.4981 OF 2025

ORDER:

This Criminal Petition is filed by the petitioner - accused seeking to quash the proceedings in STC No.12 of 2023 on the file of the learned Prl.Judicial Magistrate of First Class at Wanaparthy. 2. Heard the submissions of Sri T.Bala Mohan Reddy, learned counsel for the petitioner and Sri Amaragani Malsoor, learned counsel for respondent No.2.

3. The learned petitioner counsel has submitted that the complaint is premature. The de facto complainant has not waited till the statutory period of 15 days after the service of notice on the petitioner and has filed the complaint just after 11 days and thus, there is deviation in the procedure which causes grave injustice to the petitioner and therefore, prayed to quash the proceedings.

4. The learned respondent No.2 counsel, on the other hand, has submitted that the complaint being premature cannot be an excuse to quash the proceedings. He further argued that the petitioner has borrowed money and has issued cheques but when they presented the same, the cheques got dishonoured and the petitioner is evading the payments under the cheques on one pretext or the other. He therefore, prayed to dismiss the petition.

5. Perused the record.

6. The allegations in the complaint point out that the petitioner is the accused against whom the complaint is lodged by respondent No.2 herein alleging that the petitioner has approached the respondent No.2 requesting for a hand loan of Rs.20 Lakhs and promised to repay the same within a period of one month and that the petitioner failed to repay the said amount within one month and requested for a grace period and issued two cheques for an amount of Rs.5 Lakhs and another cheque for Rs.15,00,000/-, dated 30.11.2022 and requested to present the said cheques on the said date. Accordingly, when the respondent No.2 has presented the said cheques before the Union Bank of India, they were returned with an endorsement ‘account closed’. On the basis of the said allegations, the STC No.12 of 2023 was registered on the file of the learned Prl.Judicial Magistrate of First Class at Wanaparthy for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘NI Act’).

7. STC No.12 of 2023 is pending before the learned Prl.Judicial Magistrate of First Class at Wanaparthy. The recitals of complaint under Section 200 Cr.P.C. reveal that the cheques are dated 30.11.2022 and were requested to be presented on the said date. Accordingly, the complainant has presented them on 01.02.2023 before the Union Bank of India but they were returned as ‘account closed’. He issued notice under Section 138 of NI Act on 06.02.2023 with a demand to repay the legally enforceable debt within 15 days and the complaint is filed on 17.02.2022. The case of the petitioner herein i.e. accused is that the cheques were not issued towards legally enforceable debt and that he has never taken any loan from respondent No.2 and that the complaint is filed before the expiry of statutory period of 15 days from the date of notice and thus, it is not maintainable.

8. Learned counsel for the petitioner relied upon a decision of the Bombay High Court in Afrojkhan v. Mandodara, 2019 SCC OnLine Bom 5422, wherein the High Court has relied upon the principle laid down in Yogendra Pratap Singh v. Savitri Pandey and another, (2014) 10 Supreme Court Cases 713 and has quashed the complaint against the accused.

9. In Yogendra Pratap Singh’s case (supra 2), it was held that “Section 138 proviso (c) of the NI Act, 1881 makes it clear that no complaint can be filed for an offence under Section 138 of NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law”.

10. In the present case also the complaint is lodged before the expiry of 15 days from the date of notice i.e. t