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Consequences Of Not Filing A Complaint US,138 of NI.Act, After The Lapse Of 15 Days Notice Consequences Of Not Filing A Complaint US,138 of NI.Act, After The Lapse Of 15 Days Notice

Bronze medal Reporter RajesLawyer (Gopal Jiii), Advocate, Allahabad HC Posted 18 Sep 2020
Consequences Of Not Filing A Complaint US,138 of NI.Act, After The Lapse Of 15 Days Notice

 Hello Friends, Blog below is related to, Consequences of not filing a complaint u/sec,138 of Negotiable Instrument Act immediately after the lapse of 15 days notice, in the form of Questions with Answers, as oftenly asked in Judicial Mains, with intention to assist those Judicial Aspirants who are preparing for such examinations, alongwith its video link in the name of:- SatyaRajLaws [email protected]   =

Qts.) A, receives a post-dated cheque from B, with an assertions that it would be duly honoured. On presentation, after One month of the due date, it is dishonoured for lack of funds. A, within a week sends registered notice demanding payment from B. B, does not respond. A, begs for another month and then redeposit the cheques, which is again dishonoured as account has been closed. A, sends a registered notice demanding payment. There being no response from B within 15 days, he files an application in terms of Sec.138 of the Negotiable Instruments Act. Can the Magistrate proceed in the matter, decide with reasons.

Ans.) Section 138 – Dishonour of cheque for insufficiency, etc., of funds in the account –

Essential ingredients:- i) that there is a legally enforceable debt; ii) that the cheque must be drawn from the account of bank for discharge in whole or in part of such debt; iii) that the cheque so issued must be presented within 3 months from the date of its issuance and such cheques is returned unpaid due to ‘insufficiency of funds’ – u/sec.138(a); iv) That the notice in writing to the drawer of the cheque demanding payment of the cheque amount should be served within 30 days from the return of such cheque u/sec.138(b); vi) that the drawer has failed to make the payment of the said amount to the payee within 15 days from the date of receipt of notice u/sec.138(c).

  • Notice – It is to be noted that service of notice of demand u/sec. 138 (b) is a condition precedent for filing a complaint under this section, after lapse of 15 days and before expiry of next 30 days.
  • Common notice of demand for the amount covered by the bounced cheque purportedly be issued u/s 138 (b).
  • Harnam Electronics vs. National Panasonic Pvt. Ltd., 2009SC – Apex Court held that mere issuance of notice from a particular place would not confer territorial jurisdiction of the Courts at that place to entertain a complaint under this Act. Thus, mere issuance of notice does not give rise to a cause of action, unless 15 days has been elapsed from service of Notice to the drawer.
  • Sec.142 – Cognizance of Offences – (1) Notwithstanding anything contained in CrPC, 1973-
    • a) No Court shall  take cognizance of any offence punishable u/sec.138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
    • b) Such complaint is made within One month of the date on which the cause of action arises u/sec. 138(c).
    • Provided, that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complaint satisfies the Court that he had sufficient cause for not making a complaint within prescribed period.
    • c)  No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the 1st Class shall try any offence punishable u/sec.138.
  • Coming to the case in hand:-

Keeping in view provisions of Sec.142(1b) and Sec.138(c) of the Act, as well as Case-laws, it has been decided that, A’s complaint against dishonour of cheque drawn by B, is likely to be dismissed as it is not entertainable by Magistrate due to the mistake of A who does not file the Complaint immediately after expiry of first 15 days notice given by A to B for making payment after dishonour of cheque and B fails to do so. Further A need not required to redeposit the cheques and wait for its honoured and give second notice and wait for another 15 days for getting his payment from B, as 1stnotice was sufficient for filing complaint against B.

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