Md Abdul Hamid vs Md Ajgar Ali And Anr on 12 February, 2026

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GAHC010207652025




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./388/2025

            MD ABDUL HAMID
            S/OLT. HAKUL SHA
            VILL- AGYATHURI, MILANPUR, P.S. HAJO, DIST. KAMRUP (M), ASSAM

            VERSUS

            MD AJGAR ALI AND ANR
            S/OLT. SAMIR ALI
            VILL- NORTH JALUKBARI, KATIA DOLONG,
            P.S. JALUKBARI, DIST. KAMRUP (M), ASSAM

            2:THE STATE OF ASSAM
             REPRESENTED BY THE PP
            ASSA

Advocate for the Petitioner   : MR. A AHMED, MR A AHMED,U U KHAN,MR. A WAHAB

Advocate for the Respondent : PP, ASSAM (R2), MR. J UDDIN (R-1),MR. M ALI (R-1)




                                  BEFORE
                HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA

                                          ORDER

Date : 12.02.2026 Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. M. Ali, learned counsel for the respondent No. 1. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent No. 2.

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[2] This application under Sections 438/442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the petitioner, namely, Md. Abdul Hamid, impugning the judgment and order dated 11.06.2025, passed by the Court of the learned Additional Sessions Judge No. 2, Kamrup (M) in Crl.A. No. 106/2024, whereby it has partly allowed the appeal filed by the present petitioner by modifying the sentence imposed on the petitioner by the Court of the learned Judicial Magistrate First Class, Kamrup (M), in CR Case No. 6127c /2018, on 06.08.2024. By the judgment passed by the learned Appellate Court, the sentence imposed on the petitioner on his conviction under Section 138 of the NI Act, 1881 was modified from the sentence of imprisonment for 8 (eight) months to 6 (six) months and the fine amount was reduced from 8,16,000/- to 6,50,000/-.

[3] The learned counsel for the petitioner has submitted that, the Trial Court, as well as the Appellate Court has overlooked the fact that the complaint was filed prematurely, in violation of the provisions of Section 138 of the NI Act, 1881.

[4] He further submits that the learned Additional Sessions Judge No. 2 has observed in the impugned order that the notice was issued from Guwahati, GPO on 25.09.2018 and there is an observation made by the learned Additional Sessions Judge No. 2, in the impugned judgment that in ordinary course, the notice ought to have reached the petitioner, within a period of 1(one) week.

[5] The learned counsel for the petitioner submits that even admitting what Page No.# 3/7

has been observed by the Appellate Court, the notice would have been received by the petitioner only on 02.10.2018. He further submits that the complaint petition was filed in this case on 12.10.2018, which is before expiry of 15(fifteen) days of the date of receipt of notice by the petitioner, and, therefore, before expiry of the time period granted by the statute for repayment of the check amount. He, therefore, submits that the Trial Court as well as learned First Appellate Court have erred in convicting and confirming the conviction of the petitioner under Section 138 of the NI Act.

[6] On the other hand, the learned counsel for the respondent No.1 has submitted that even if the complaint is taken to prematurely filed, the complainant cannot be remediless and would be entitled to file a second complaint. In this regard, the learned counsel for the respondent No. 1 has referred to the decision of the Hon'ble Apex Court in Criminal Appeal No. 1229 of 2022, dated 12.08.2022 (Gajanand Burange Vs. Laxmi Chand Goyal), wherein it has referred to its earlier decision of the three judges bench in Yogendra Pratap Singh Vs. Savitri Pandey and anr. reported in (2014) 10 SCC 713 wherein in paragraph 5, two issues were formulated for decision before the three Judge- Bench, which were:

"1.1. (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? And Page No.# 4/7

1.2. (ii) If answer to Question 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint expired?"

[7] It was held in 6 of the judgment which reads as follows:

"35. Can an offence under Section 138 of the NI Act be said

to have been committed when the period provided in clause

(c) of the proviso has not expired? Section 2(d) of the Code defines "complaint". According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committee an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not a question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is not complaint at all under law.

As the matter of fact, Section 142 of the NI Act, inter alia, Page No.# 5/7

creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. 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 jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque."

[8] It was further held in the aforesaid decision in Gajanand (Supra).

"41... Now, since our answer to Question (i) is 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 provision 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 Page No.# 6/7

the expiry of 15 days from the date of receipt of notice issued under clause (c) of the provision 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 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."

[9] After referring to the aforesaid decision, the Hon'ble Apex Court disposed of the appeal by setting aside the impugned order and granted liberty to the complainant to file complaint afresh seeking benefit of the proviso to Section 142 of the NI Act showing sufficient cause for the delay in instituting the complaint.

[10] In view of the above, the present revision petition is disposed of by setting aside the judgment and order of both the learned courts below on the following terms:

(i) The impugned judgment and order dated 11.06.2025 of the learned Addl. Sessions Judge No. 2, Guwahati in Crl.

Appeal No. 106 of 2024 and impugned judgment and order dated 06.08.2024, passed by the learned Judicial Magistrate, First Class, Kamrup (M), in CR Case No.

6127c/2018 shall stand set aside; and Page No.# 7/7

(ii) The respondents would be at liberty to institute a fresh complaint and since the earlier complaint could not be presented within the time prescribed by Section 142(b) of the NI Act, the respondents would be at liberty to seek the benefit of the proviso by satisfying the trial court of sufficient cause for the delay in instituting the complaint.

[11] The Criminal Revision petition is accordingly disposed of.

JUDGE

Comparing Assistant