A Section 138 complaint filed before deemed service and expiry of the 15-day payment period is premature.

The complainant alleged that the accused purchased 300 cartons of apples for ₹5,25,000, paid ₹1,25,000 in cash, and issued a cheque for ₹4,00,000 towards the balance amount.

The cheque was dishonoured for “insufficient funds.” A demand notice was issued on 19.10.2016, but the complainant asserted that it was not returned undelivered and was therefore deemed served.

The complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), was filed on 08.11.2016. The Trial Court convicted the accused and sentenced him to one year’s simple imprisonment, ₹4,70,000 compensation, and six months’ imprisonment in default of payment; the Appellate Court affirmed the conviction.

In revision, the accused contended, inter alia, that the complaint was filed before expiry of the statutory period following service of notice.

Whether a demand notice sent by registered post, whose actual delivery is not proved and which is not returned undelivered, can be presumed to have been served only upon expiry of 30 days from its issuance?

Whether the complaint under Section 138 of the NI Act, filed before expiry of the 15-day payment period calculated from such deemed service, was premature and legally maintainable?

Whether the plea that the complaint was premature, though not raised before the courts below, could be considered in revision as a jurisdictional objection?

Section 138(c) of the NI Act requires the drawer to be given 15 days from receipt of the demand notice to make payment before the offence is complete, while Section 142 bars cognizance of a complaint filed before the statutory requirements are satisfied.

Under Subodh S. Salaskar v. Jayprakash M. Shah, 2008 SCC OnLine SC 1174, where actual service is not established, 30 days may be treated as a reasonable period for presumed service.

Manoj Kumar Nag v. State of Jharkhand and Anil Kumar Goel v. State of U.P. similarly recognise that deemed service, in the absence of proof of delivery, may be reckoned 30 days after dispatch.

Under Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, reaffirmed in Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711, a complaint filed before expiry of 15 days from service of notice is no complaint in the eyes of law and cognizance cannot validly be taken.

The Court also applied the limited scope of revisional jurisdiction: a revisional court may correct jurisdictional or legal errors but ordinarily cannot reappreciate concurrent factual findings as an appellate court.

The notice was issued on 19.10.2016, and the record did not establish its actual delivery or contain the returned registered cover.

Applying the 30-day rule for presumed service, the Court held that the notice could be deemed served only on 18.11.2016.

The accused consequently had a further 15 days to make payment. However, the complaint was filed on 08.11.2016, before the notice could legally be deemed served and before expiry of the statutory payment period.

Therefore, the complaint was premature and the Magistrate lacked jurisdiction to take cognizance of it.

The objection could be raised for the first time in revision because prematurity and limitation under Section 138 concern the court’s jurisdiction.

The Court accordingly found it unnecessary to reconsider the concurrent findings regarding issuance of the cheque, the underlying liability, or dishonour.

The revision was allowed; the conviction dated 19.10.2022, sentence dated 28.10.2022, and appellate judgment dated 25.03.2025 were set aside, and the complaint was dismissed as premature.