Magistrate cancelled my complaint under section 138 NI Act saying premature. I presented the cheque in the bank and that cheque was dishonoured. When I came to know from the bank that the drawer has insufficient money in his bank account the cheque has been bounced. Then I contacted an advocate who prepared the demand notice. That demand notice was delivered to the accused on 10.12.2023. On 25.12.2023 my advocate filed the complaint under Section 138 of the negotiable instrument act. When the court has issued the summon to the accused he approached the court and said that he is willing to pay the cheque amount but without giving sufficient time the complaint was filed. Thereupon the court has dismissed the complaint. The court wrote in the order that complaint has been before date. My advocate says that the complaint is within the time. The magistrate has wrongly cancelled my complaint under Section 138 NI Act saying premature to the offence. I want to take action against the Magistrate. He has no knowledge of law.
Asked from: Andhra Pradesh
It appears from the facts of your case that the complaint was premature. You filed the complaint before the expiry of fifteen days from the date the accused received the demand notice. The day the notice was sent is excluded.
According to Section 138(c) of the Negotiable Instruments Act, an offence is considered to have been committed only if the drawer of the cheque fails to pay the amount within fifteen days of receiving the notice.
If fifteen days have not passed since the receipt of the demand notice, the court has no power to take cognizance of the offence. Such a complaint is considered non est and has no legal effect. The cause of action arises on the sixteenth day from the date of receipt of the notice.
As per Section 142 of the Negotiable Instruments Act, the court cannot take cognizance of the offence until the cause of action has arisen. This principle was established by the Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey (2014) 10 SCC 713.
You still have the option to file a fresh complaint within one month from the date of the court’s decision. The limitation period starts from the day the Magistrate passed the order in your case, by which your cheque was cancelled. For more legal help please visit Kanoon India.
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