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Judgment
This Criminal Petition has been filed by the petitioner/accused seeking to quash the proceedings in S.T.C.N.I.No.22 of 2023 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Nagarkurnool.
Heard Ms.Muskan Joshi, learned counsel representing RVR Associates, learned counsel for the petitioner and Mr.K.Pradeep Reddy, learned counsel for respondent No.2.
Learned counsel for the petitioner submitted that respondent No.2 filed a complaint by invoking the provisions of Section 200 of the Cr.P.C. before the Judicial Magistrate of First Class (Special-Mobile) at Nagarkurnool against the petitioner for the offence punishable under Sections 138 r/w 142 of the Negotiable Instruments Act, 1881 (for short, ‘NI Act’), even before the expiry of the statutory period as envisaged under Clause (c) of proviso of Section 138 of the NI Act. She further submitted that respondent No.2 has not filed any proof that the statutory notice sent by him was delivered or served on the petitioner. In the absence of effective service of notice, respondent No.2 is not entitled to maintain the complaint under Section 138 of the NI Act. Hence, the continuation of the proceedings against the petitioner is a clear abuse of the process of law.
Learned counsel for respondent No.2 submitted that respondent No.2 filed the complaint before the expiry of the statutory period of 15 days. However, as per the principle laid down by the Full Bench of the Hon’ble Apex Court in Yogendra Pratap Singh v. Savitri Pandey and another1, respondent No.2 is entitled to file a fresh complaint within a period of one month. He further submitted that, by virtue of the principle laid down in Yogendra Pratap Singh (supra), the complaint filed by respondent No.2 before the expiry of the statutory period of 15 days is not maintainable. Pursuant to the said principle, the Hon'ble Apex Court in Crl.A.No.605 of 2012 on 16.10.2014, permitted the complainant to file a fresh complaint within one month, and if the fresh complaint is filed within the said period, the learned Magistrate shall entertain and deal with the same as if it had been filed within the stipulated time, on merits and in accordance with law and the benefit granted in the said case may be extended in favour of respondent No.2.
Learned counsel for petitioner has not disputed the above said submission.
Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that respondent No.2 filed compliant against petitioner for the offences punishable under Sections 138 r/w 142 of the NI Act on 05.07.2022. The specific case of the petitioner is that respondent No.2 even before expiry of statutory period of 15 days time as required under Clause (c) of proviso of Section 138 of the NI Act filed compliant and same is not maintainable under law. The learned Hon'ble Apex Court in Yogendra Pratap Singh (supra) held that no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. In the case on hand, though learned counsel for the petitioner raised another contention that respondent No.2 has not placed any material to establish that the statutory notice sent by him was delivered to the petitioner, the same is a disputed question of fact and cannot be adjudicated or decided while exercising the powers conferred under Section 528 of the BNSS. The petitioner is entitled to put forth the said ground during the course of trial. However, respondent No.2 filed the present complaint even before the expiry of the statutory period of 15 days, and the same is not maintainable in law. The Hon'ble Apex Court in Yogendra Pratap Singh (supra), at paragraph 41, held as follows:
"Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. 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. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already 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, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint, and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly.
The Hon'ble Apex Court, in the above said judgment and order, specifically held that the complainant is entitled to file a fresh complaint on the basis of the notice already issued by him within a period of 30 days from the date of the order passed in Crl.A.No.605 of 2012, i.e., 16.10.2014.
Taking into consideration the peculiar facts and circumstances of the case, and principle laid down by the Hon'ble Apex Court in Yogendra Pratap Singh (supra), this Court is of the considered view that the present complaint, vide S.T.C.N.I.No.22 of 2023, on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Nagarkurnool, was filed even before the expiry of the statutory period of 15 days, as required under Clause (c) of the proviso to Section 138 of the NI Act, and the same is liable to be quashed. Accordingly, the same is hereby quashed on the above said ground only. However, respondent No.2 is granted liberty to file a fresh complaint within a period of 30 days from today. In case respondent No.2 files a fresh complaint within the aforesaid period, the learned trial Court is directed to treat the complaint as having been filed within the stipulated time and dispose of the case in accordance with law.
Accordingly, the Criminal Petition is disposed of.
Miscellaneous applications, pending if any, shall stand closed.
Footnotes
- 1.(2014) 10 SCC 713