All HC | Once the intention of the party is clear that he does not wish to make payment, should complainant wait for 15 days to file a complaint for dishonour of cheque? HC answers

Allahabad High Court: In the instant case where the summoning order issued as per the requisites of Section 138 of Negotiable Instrument Act, 1881, was challenged as being ‘bad in law’ and the question arose that once the intention of the party is clear that he does not wish to make payment, should a complainant wait for 15 days to file the complaint; the Bench of Dr Kaushal Jayendra Thaker, J., answering the question in negative, dismissed the petition while observing that proviso (c) to Section 138 of the NI Act cannot be interpreted to mean that even if the accused refuses to make a payment, the complainant cannot file a complaint.

As per the facts of the case, two cheques of Rs 5,00,000 and Rs 5,98,000 were dishonoured on 28-05-2019. The complainant sent a notice on 11-06-2019. Upon not receiving any money, on 29.06.2019 the complainant filed the complaint under Section 138 of Negotiable Instrument Act, 1881. Consequently, a summoning order dated 03-09-2019 was issued whereby which the petitioner was supposed to present himself on 30-11-2019. The counsel for the petitioner Ajay Dubey upon being asked to explain that why the summoning order is bad, stated that as per the provisions of Section 138 the petitioner cannot be asked to answer the summons as he had already filed a reply and the complaint could have been filed only after 15 days of his reply and it was filed before the said date. The petitioner’s counsel further contended that summoning order was not in compliance with the provisions of Section 138 and that the application was falsely implicated due to enmity and financial dispute with the complainant.

Perusing the arguments and the Sections 138 and 142 of NI Act, the Court observed that the 15 days statutory period as per Section 138 proviso (c), is for making payment and does not constitute ingredients of offence punishable under Section 138. The proviso simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for the lodging of complaint. The Court noted that, “In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be ‘no’”.[Ravi Dixit v. State of U.P., 2020 SCC OnLine All 1056, decided on 23-09-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

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