HC Dismisses Sec. 138 Complaint Against Accused as it was Filed Prematurely Before Expiry of 15-Day Notice Period

Case Details: Santosh Kumar Shrivastava v. State of U.P. [2024] 167 taxmann.com 657 (HC - Allahabad)

Judiciary and Counsel Details

• Gajendra Kumar, J.
• Awaneesha Kumar & Narendra Singh for the Appellant.

Facts of the Case

In the instant case, in a cheque bounce case, a criminal complaint under section 138 of the Negotiable Instruments Act, 1881, was filed against the accused. The Judicial Magistrate took cognizance under section 138 and passed a summoning order.

It was noted that the date of the demand notice sent by the complainant was 30.09.2019. However, the date of presumed/deemed service of legal notice would be the day/date on which a reply to legal notice was sent, and 15 days from the date of service of notice would expire only on or about 13.11.2019. The present complaint case was filed on 23.10.2019.

The High Court observed that the instant complaint case was premature as the cause of action for filing a complaint case under Section 138 of the Act had not crystalised on 23.10.2019.

High Court Held

The High Court held that the complaint was not maintainable. Accordingly, the instant application instant petition by the accused filed under section 482 of the Cr.P.C seeking quashing of a criminal complaint filed under section 138 was to be allowed.

Further, the High Court held that the cause of action for filing a complaint case under Section 138 of the Act could not arise prior to the expiry of 15 days from the date of service of the legal notice on the accused

List of Cases Reviewed

• Yogendra Pratap Singh v. Savitri Pandey and another (2014) 10 SCC 713 (Para 6) followed