All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., held that a complaint made in light of dishonor of cheque filed with a delay of one day cannot be dismissed as one day delay has to be excluded.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 on being aggrieved by an Order passed by Court of Additional Sessions Judge and another order passed by Additional Chief Judicial Magistrate under Section 138 of the Negotiable Instruments Act whereby applicants’ complaint was dismissed on the ground of delay.

Factual Matrix


Accused/OP 2 had requested for money of Rs 6,00,000 from the complainant/applicant on personal need which was later transferred in the accused’s bank account. At the time of the return of the same, OP 2 gave to the applicant a Cheque which was dishonoured on account of insufficiency of funds.

In view of the above, a notice was sent to OP 2, on receiving the same, he again gave a cheque which was presented with a remark “Alteration /Correction on Instruments”. Despite notice OP 2 has so far not given the amount of the cheque, further on being aggrieved, the applicant filed the complaint.

Court concerned in light of the complaint summoned OP 2 after recording the statements under Sections 200 and 202 CrPC against which the OP 2 preferred revision before the Sessions Judge, Aligarh. Sessions quashed the summoning order holding that legal notice was not sent within the time prescribed and hence matter was remanded back to the Court concerned.

Section 142 of NI Act gives ample power to the Judge to condone delay.

Bench stated that in view of the provisions amended in the Negotiable Instruments Act way back on 06-02-2003, even if Court considers there was a delay in the lodgement of the complaint, applicant’s counsel satisfied the Court’s conscience that the complaint was in time as the period of one day has to be excluded.

Court observed that the respondent wanted to take advantage of loopholes in the Act, hence Judge was directed to pass a reasoned summoning order to the respondents who evaded to appear even before this Court.

In view of the above discussion, the impugned order was set aside and quashed. [Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]

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