Supreme Court To Consider Whether Complaint U/s. 138 NI Act Can Be Filed Before 15 Days From Date Of Notice
The Supreme Court on Tuesday issued a notice in a Special Leave Petition challenging the order of the Lucknow Bench of Allahabad High Court which refused to quash a Criminal Complaint under Section 138 of the Negotiable Instruments Act filed before the expiry of fifteen days of the statutory notice against the present Petitioner.
The Vacation Bench of Justice J.K. Maheshwari and Justice P.S. Narasimha directed "Issue notice to the respondents, returnable in four weeks. Until the next date of listing on reopening of the Court after Summer Vacation, the operation of the order of issuance of the non-bailable warrant of arrest shall remain stayed."
It was submitted before the Vacation Bench that the Allahabad High Court at Lucknow Bench erred in not noticing that 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 the law and obviously that no cognizance of an offence can be taken on the basis of such complaint.
Advocate Nachiketa Joshi along with Advocate Asad Khan appeared for the petitioner. It is submitted in the petition that to institute a case under Section 138 of the Negotiable Instruments Act, the drawer of such cheque should fail to make the payment within fifteen days of the receipt of the said notice from the Respondent (Original Complainant) and here in the present matter the Petitioner was served with a notice on June 9, 2018, wherein the Complaint was filed on June 21, 2018, and the proceeding was initiated against the petitioner against the provision of Section 138 (C) of Negotiable Instrument Act.
The Petitioner has highlighted the fact that the complaint could have been filed only after June 24, 2018, but was filed on June 21, 2018, before the period of fifteen days was complete. The SLP read that "Trial Court erroneously issued the summon against the present Petitioner without considering the legal and factual aspect of complaint and ignored the requirement of Section 138 of N.I. Act. The High Court also did not appreciate the law laid down by this Court that the complaint cannot be filed within 15 day’s time from the date of notice."
The Petitioner relied upon the case of Yogendra Pratap Singh Versus Savitri Pandey reported in (2014) 10 SCC 71 3 in which the 3-Judge Bench of the Supreme Court had held that "a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable".
Further relying on the Judgement of Gajanand Burange versus Laxmi Chand Goyal (Criminal Appeal No. 1229 of 2022) reported in 2022 SCC Online SC 1711, the Petitioner submitted that the Court reiterated its stand by stating "that the complaint is not maintainable if complaint was filed within period of fifteen days from date of receipt of notice and taking of cognizance by the Court was contrary to the law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receiving."
The Bench of Justice Suresh Kumar Gupta of the Allahabad High Court disposed of the application filed under Section 482 of the Code of Criminal Procedure by the petitioner and noted that "So far as the cognizance and summoning order passed by the learned trial court is concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case."
The High Court stated that it cannot be said that no offence is made out against the applicant and refused the prayer for quashing the impugned summoning order. Being aggrieved by the same, the Petitioner approached the Supreme Court with a question of Law-"Whether the High Court and trial Court have not taken into account the fact the essential ingredient of Section 138 of N.I. Act makes it mandatory for the complaint to be filed after the expiry of 15 days from the date of receipt of notice and if the complaint is filed before the expiry of 15 days the same shall not be maintainable?"
Cause Title: Arshad Mehmood Khan V. State Of U.P. & Anr. [SLP (Crl.) No. 6849/2023]