Lender’s Cheque-Bounce Complaint Filed 12 Days After Notice Was Premature: Allahabad HC Sets Aside Summons

The complainant alleged that he had advanced the applicant a loan of ₹2,50,000, of which the applicant later issued a cheque for ₹1,50,000. After the cheque was returned unpaid, the complainant issued a legal notice dated 20 April 2016, which was allegedly refused. He filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) on 2 May 2016; the Magistrate summoned the applicant on 10 May 2016.

The applicant sought quashing under Section 482 CrPC, contending that the complaint was filed before expiry of the statutory 15-day payment period. The complainant opposed quashing, relying on the time elapsed since the complaint was filed.

Section 138(c) of the NI Act requires the drawer to fail to pay the cheque amount within 15 days of receipt of the statutory notice before an offence is complete; under Section 142, cognizance requires a written complaint filed after the cause of action arises.

In Yogendra Pratap Singh v. Savitri Pandey (2014) 10 SCC 713, the Supreme Court held that a complaint filed before expiry of that 15-day period is not a complaint in law and cannot support cognizance; the complainant’s remedy is to file a fresh complaint and, where required, seek condonation under the proviso to Section 142(b). The Court followed Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711, which reaffirmed that rule.

The Court proceeded on the assumption that the notice was refused on the date it was issued, 20 April 2016. Even on that assumption, the statutory 15-day period had not expired when the complainant filed the case on 2 May 2016; the complaint could be filed only after the period expired, which the Court identified as 6 May 2016 or thereafter.

Applying Yogendra Pratap Singh and Gajanand Burange, the Court held that the premature complaint could not sustain cognizance. The passage of time since filing did not prevent the Court from setting aside the summoning order; the complainant’s remedy was a fresh complaint, with recourse to the statutory delay-condonation provision if needed.

It permitted the complainant to institute a fresh complaint and to seek the benefit of the proviso to Section 142(b) by showing sufficient cause for delay.

If a second complaint is filed within two months of the order, the trial court must dispose of it within six months.