YOGENDRA PRATAP SINGH versus SAVITRI PANDEY & ANR.

Citation: [2014] 12 S.C.R. 26 · Decided: 19-09-2014 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Hearing Adjourned
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Judgment (excerpt)

A 
B 
[2014] 12 S.C.R. 26 
YOGENDRA PRATAP SINGH 
v. 
SAVITRI PANDEY & ANR. 
(Criminal Appeal No. 605 of 2012) 
SEPTEMBER 19, 2014 
[R.M. LODHA, CJI, KURIAN JOSEPH AND 
R.F. NARIMAN, JJ.] 
Negotiable Instruments Act, 1881 - ss. 138 and 142 -
C Dishonour of cheque - Complaint filed before the expiry of 
the period of 15 days stipulated in the notice required to be 
seNed on the drawer of the cheque - Maintainability of -
Held: Complaint is not maintainable - It is no complaint at 
all in the eyes of law - No cognizance of an offence can be 
D 
taken on basis of such complaint because there is no 
commission of an offence nor accrual of cause of action for 
filing of complaint u/s. 138 - Remedy is to file a fresh 
complaint within one month of the date on which cause of 
action arose and if not, the recourse is to seek the benefit of 
E 
the proviso to s. 142 (b), satisfying the court of sufficient 
cause. 
Answering the questions referred, the Court 
HELD: 1.1 Section 2(d) of the Code of Criminal 
F 
Procedure defines 'complaint', according to which 
complaint means any allegation made orally or in writing 
to a Magistrate with a view to taking his action against a 
person who has committed an offence. Commission of 
an offence is a sine qua non for filing a complaint and for 
G taking cognizan'ce of such offence. A bare reading of the 
provision contained in clause (c) of the proviso to Section 
138 of the Negotiable Instrument Act, 1881 makes it clear 
that no complaint can be filed for an offence uls. 138 
unless the period of 15 days has elapsed. Any complaint 
H 
26 
YOGENDRA PRATAP SfNGH v. SAVITRI PANDEY 
27 
before the expiry of 15 days from the date on which the A 
notice has been served on the drawer/accused is no 
complaint at all in the eyes of law. No cognizance of an 
offence can be taken on the basis of such complaint. It 
is not the question of prematurity of the complaint where 
it is filed before expiry of 15 days from the date on which B 
notice has been served on him, it is no complaint at all 
under law. Merely because at the time of taking 
cognizance by the Court, the period of 15 days has 
expired from the date on which notice has been served 
on the drawer/accused, the Court is not clothed with the c 
jurisdiction to take cognizance of an offence u/s. 138 on 
a complaint filed before ·the expiry of 15 days from the 
date of receipt of notice by the drawer of the cheque. 
[Para 36] [49-F-H; 50-A-E] 
1.2. A complaint filed before expiry of 15 days from D 
the date on which notice has been served on drawer/ 
accused cannot be said to disclose the cause of action 
in terms of clause (c) of the proviso to Section 138 and 
upon such complaint which does not disclose the cause 
of action the Court is not competent to take cognizance. E 
A conjoint reading of Section 138, which defines as to 
when and under what circumstances an offence can be 
said to have been committed, with Section 142(b) of the . 
NI Act, that reiterat~s the position of the point of time 
when the cause of action has arisen, leaves no manner F 
of doubt that no offence can be said to have been 
committed unless and until the period of 15 days, as 
prescribed under clause (c) ·Of the proviso to Section 138, · 
has, in fact, elapsed. Therefore, a Court is barred in law 
from taking cognizance of such complaint. It is not open G 
to the Court to take cognizance of such a complaint 
merely because on the date of consideration or taking 
cognizance thereof a period of 15 days from the date on 
which the notice has been served on the drawer/accused 
H 
28 
SUPREME COURT REPORTS 
(2014) 12 S.C.R. 
A 
has elapsed. 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. 
There is no doubt that all the five essential features of 
B Section 138 of the NI Act must be satisfied for a complaint 
to be filed under Section 138. If the period prescribed in 
clause (c) of the proviso to Section 138 has not expired, 
there is no commission of an offence nor accrual of cause 
of action for filing of complaint u/s. 138 of the NI Act. [Para 
c 37, 39] [50-F-H; 51-A-B, G-H; 52-A] 
1.3. Section 142 prescribes the mode and so also the 
time within which a complaint for an offence u/s. 138 can 
be filed. A complaint made uls. 138 by the payee or the 
holder in due course of the cheque has to be in
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