Ajay Kumar Mishra vs State Of U.P. And Anr.
2022 Latest Caselaw 8650 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- APPLICATION U/S 378 No. - 284 of 2018
 

 
Applicant :- Ajay Kumar Mishra
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Yogendra Kumar Tiwari
 
Counsel for Opposite Party :- Govt. Advocate,Shailredra Misra
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

A consensus has arrived between learned counsel for the applicant/appellant and learned counsel appearing for opposite party no.2 to hear their submissions with regard to the grant of leave to appeal as well as, in case the leave is granted, with regard to appeal, on merits, as the record of the trial Court is also available.

Heard Shri Yogendra Kumar Tiwari, learned counsel for the applicant/appellant, Shri Shailredra Misra, learned counsel appearing for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

Learned counsel for the applicant/appellant submits that the instant leave to appeal has been filed on the limited question of law as the trial Court while dismissing the complaint filed by the applicant/appellant under Section 138 Negotiable Instrument Act on the ground that it has been filed prematurely without the occurrence of any cause of action has not granted liberty to the applicant-appellant to file complaint afresh. To buttress his point, it is vehemently submitted that the judgment of the trial Court is based on the law laid down by the Hon'ble Supreme Court in 'Yogendra Pratap Singh vs. Savitri Pandey and another', (2014) 10 SCC 713, but the trial Court has committed material illegality in not following the dictum of law laid down by the Hon'ble Supreme Court in this case as in the case relied on by the trial Court, it was provided that those complaints which have been dismissed as have been filed prematurely a fresh complaint with regard to the same cause of action may be filed after complying the formalities, as provided under Section 138 and 142(b) of the Negotiable Instrument Act.

Learned A.G.A. as well as learned counsel appearing for opposite party no.2 has not disputed the legal position as enumerated by the Hon'ble Supreme Court in Yogendra Pratap Singh (supra), but submits that an opportunity was available to the applicant-appellant to file a fresh complaint before the trial Court and there was no need to approach this Court by filing the instant appeal.

Having heard learned counsel for the parties and having perused the record, it is evident that the lis between the parties is purely of legal nature, thus, the leave to appeal filed by the applicant-appellant is, hereby, allowed.

Perusal of the record of the trial Court in the background of the submissions advanced by learned counsel for the parties would reveal that the trial Court has dismissed/rejected the complaint filed by the applicant-appellant on the ground that the same has been filed prematurely. The trial Court was of the view that a notice for raising demand in respect to the cheque dishonoured was given on 26.06.2015 and the complaint has been filed by the complainant on 10.07.2015 i.e. before 15 days, thus, no cause of action had accrued to the appellant.

Learned counsel for the appellant has not challenged this part of the judgment of the trial Court rather he feels aggrieved by the fact that while dismissing the complaint on the ground that the same has been filed prematurely, the trial Court has not given any opportunity to the applicant-appellant to file the complaint afresh as provided by the Hon'ble Supreme Court in Yogendra Pratap Singh (supra).

Perusal of the judgment of the Hon'ble Supreme Court passed in Yogendra Pratap Singh (supra), would reveal that the Hon'ble Apex Court has granted a liberty to those complainants whose complaint filed under Section 138 of The Negotiable Instrument Act has been found to be not maintainable on account of the fact that the same has been filed prematurely to file a fresh complaint. The relevant portion of the Judgment of the Hon'ble Supreme Court is reproduced as under:-

"Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142 (b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly."

The above observation of the Hon'ble Supreme Court would make it clear that it has been opined by the Hon'ble Supreme Court that the complaint which has not proceeded further in view of the fact that the same has been found to have been filed prematurely, a fresh complaint may be filed and in such cases the benefit of the provision contained under Section 142 (b) of The Negotiable Instrument Act, may also be granted to the complainant whose complaint has been dismissed prematurely. Thus, the only illegality which appears to have been committed by the trial Court in the Judgment and order under appeal is pertaining to not providing an opportunity to the applicant-appellant to file a fresh complaint on the basis of same cause of action.

Thus, for the reasons and legal position mentioned herein-before, the instant appeal filed filed by the appellant/complainant- Ajay Kumar Mishra is partly allowed and the judgment and order of the trial Court dated 13.08.2018 is modified to the extent that the applicant/appellant is now permitted to file a fresh complaint before trial Court with regard to the same cause of action and if such a complaint has been filed, with regard to the same cause of action, the trial Court shall also be under an obligation to provide the benefit of Section 142 (b) of The Negotiable Instrument Act to the applicant/appellant.

Order Date :- 1.8.2022

Praveen