Drawer Of Cheque Can’t Escape From Prosecution Merely Because Premature Complaint Was Filed Before Expiry Of 15-Day Period: Karnataka High Court
The Karnataka High Court has observed that the drawer of the cheque cannot be allowed to escape from prosecution merely on a technical count that a premature complaint was filed against him before expiry of the statutory period of 15 days as per the mandate of Section 138(c) of the Negotiable Instruments Act.
The Revision Petition before the High Court was directed against the judgment affirming the conviction of the accused petitioner under Section 138 of the Negotiable Instruments Act (NI Act).
The Single Bench of Justice Shivashankar Amarannavar explained, “Drawer of the cheque cannot be allowed to escape from prosecution merely on a technical count that a premature complaint was filed against him before expiry of the statutory period of 15 days as per the mandate of Section 138(c) of N.I. Act. Such drawer of the cheque is liable to be prosecuted in a second successive complaint filed on the same facts by the holder of the cheque. The drawer of the cheque would not be absolved from penal consequences of dishonouring of cheque issued by him/her.”
Advocate Praveen C represented the Petitioner, while Advocate B C Rajanna represented the Respondent.
Factual Background
The petitioner–accused approached the respondent–complainant for financial help in order to develop his business and borrowed a hand loan of Rs one lakh. To repay the said amount, he issued a cheque which came to be dishonored for the reason ‘funds insufficient’ under the Bank memo. The respondent–complainant got issued a demand notice, and the same came to be served on the petitioner–accused.
The trial Court took cognizance against the petitioner–accused and ordered him to undergo simple imprisonment for 6 months. The said judgment of conviction was challenged by the petitioner–accused before the Sessions Court, which came to be dismissed. The petitioner–accused thus filed the revision petition challenging the said judgment.
Reasoning
On a perusal of the provisions of the Negotiable Instruments Act, the Bench explained that Section 138(c) of the NI Act indicates that offence under Section 138 is made only if the drawer of the cheque fails to make the payment of the cheque amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice. If the payment is not made by the drawer of the cheque within 15 days of receipt of notice, then as per Section 142(b) of the N.I. Act, a complaint can be filed within 1 month of the date on which the cause of action arises under Section 138(c) of the N.I. Act. Cognizance can only be taken upon a complaint submitted in writing.
Referring to the judgment of the Apex Court in Yogendra Pratap Singh v. Savitri Pandey (2015) and Gajanand Burange Vs. Laxmi Chand Goyal (2022), the Bench observed, “From the aforesaid law laid down by the Hon’ble Apex Court in the case of Yogendra Pratap Singh (supra) and Gajanand Burange (supra) it is apparent that in a case where the complaint was filed before the expiry of 15 days stipulated in the notice which is required to be served upon the drawer of the cheque, the Court cannot take cognizance thereof. However, the second complaint on the same cause of action has been held to be maintainable and the delay in filing such complaint shall be deemed to have been condoned.”
The Bench modified the impugned judgment of the Additional Chief Metropolitan Magistrate, Bengaluru, and granted liberty to the respondent–complainant to file a fresh complaint against the petitioner–accused within 1 month. “In case such complaint is filed by the respondent – complainant within a period of 1 month, the delay in filing the complaint would be condoned under proviso to Section 142 of the N.I. Act”, the Bench held while disposing of the petition.
Cause Title: Arumugam v. Ananda (Neutral Citation: 2025:KHC:21074)
Appearance
Petitioner: Advocate Praveen C
Respondent: Advocate B C Rajanna
