S. 138 NI Act | Complainant Can't Be Left Remediless Merely Because He Filed 'Premature' Complaint For Cheque Dishonour: Rajasthan HC

The Rajasthan High Court reiterated that where the complaint of cheque bouncing was filed before the expiry of stipulated timeline of 15 days under Section 138 of the Negotiable Instruments Act, the court could not take cognizance of such compliant.

However, the court while referring to Supreme Court decisions on the issue said that, in such case, the holder could register a second complaint on same cause of action within one month of receiving the order in the first complaint, as the complainant cannot be left remediless. 

Justice Anoop Kumar Dhand held that,

“From the aforesaid law laid down by the Apex Court in the case of Yogendra Pratap Singh (supra) and Gajanand Burange (supra), it is apparent that in a case where the complaint was filed before the expiry of a period of fifteen days stipulated in the notice which is required to be served upon the drawer of the cheque, the Court cannot take cognizance thereof. However, the second complaint on the same cause of action has been held to be maintainable and the delay in filing such complaint shall be deemed to have been condoned".

It further said the very object of laying down of such a law was to curtail the practice of filing the pre-mature complaints. However, the court noted, that by grating liberty to file fresh complaint in cases where the complaints have already been filed before the expiry of the mandatory period of fifteen days in terms of Section 138 (c) of the Act, a balance has been struck so as to not make the complainant remediless. It further said:

"The appellant cannot be left remediless just because he has filed a premature complaint before expiry of the statutory period of fifteen days. It is settled position of law that no person shall be left remedy less and whatever grievance the person have raised before the Court of law, the same has to be examined on its own merits…“Ubi Jus Ibi Remedium” is an established principle of law and it provides that there is no wrong without a remedy and where there is a legal right, there has to be a remedy. The appellant has sustained legal injury when the cheque issued by the respondent was dishonoured.”

The Court was hearing an appeal against the judgment of Additional Sessions Judge that allowed the plea filed by the accused and acquitted him from the charge under Section 138(cheque dishonour), NI Act, on a technical ground that a premature complaint was filed by the appellant.

Owing to the dishonour of cheque issued by the accused to the appellant, the legal notice under Section 138 was given to the accused. Before the expiry of the stipulated 15 days, a complaint was filed by the appellant wherein the accused was found to be guilty by the Additional Chief Judicial Magistrate. Against this conviction, appeal was filed by the accused which was allowed on the grounds of the complaint being premature.

After hearing the parties, the Court perused Section 138 and Section 142 of the NI Act and highlighted, as per Section 138(c), the offence under Section 138 was made only if the drawer of the cheque failed to pay the cheque amount within 15 days of receiving the notice. And as per Section 142(b), if no amount was received within the 15 days stipulated under Section 138, a complaint could be filed within one month of arising of cause of action.

The Court referred to the Supreme Court case of Yogendra Pratap Singh Vs. Savitri Pandey in which the Apex Court had dealt with 2 questions: 1) Whether a complaint filed before expiry of 15 days under Section 138 could be taken cognizance of? 2) If no, whether the complainant could file another complaint despite the expiry of one month stipulated in Section 142? The following was ruled in the case,

“It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint…The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act.”

The Court opined that the object behind laying down this law was to strike a balance between curtailing people from filing pre-mature complaints but at the same time not making the complainant remediless. The Court referred to the case of Ashby v White (1703) in which it was held that when law grants right to a person, the person must have remedy to maintain such right in case of any violation and in absence of such a remedy, it was vain to imagine a right.

In this background, the Court highlighted that the Supreme Court decision was ignored by the court in acquitting the accused and thus erred in making that decision. It held that the court was supposed to grant liberty to the appellant to file a fresh complain as per the decision of the Supreme Court.

Accordingly, the Court set aside the acquittal of the accused and granted liberty to the appellant to file a fresh complaint within one month.

Title: Moolchand v Bhairulal

Citation: 2024 LiveLaw (Raj) 426

Click Here To Read/Download Order