Karnataka High Court
Arumugam vs Ananda on 18 June, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 1021 of 2017
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 1021 OF 2017
BETWEEN:
ARUMUGAM
S/O. SHAMU
AGED ABOUT 38 YEARS
RESIDING AT No. 174/2
7TH CROSS, HONGASANDRA
BEGUR MAIN ROAD
BANGALORE - 560 068.
Digitally signed by
LAKSHMINARAYANA ...PETITIONER
MURTHY RAJASHRI
Location: HIGH (BY SRI PRAVEEN C, ADVOCATE)
COURT OF
KARNATAKA
AND:
ANANDA
S/O ASWTHAPPA
AGED ABOUT 29 YEARS
No.596, 2ND FLOOR
SRK, OPP ROAD
NEAR ROSE APARTMENTS
DODDATHOGURU
ELECTRONIC CITY
BANGALROE - 560 076.
...RESPONDENT
(BY SRI B C RAJANNA, ADVOCATE)
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CRL.RP No. 1021 of 2017
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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER
DATED 03.04.2017 IN C.C.No.8433/2016 BY THE LEARNED XIX
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BANGALORE AND IN CRL.A.No.649/2017 DATED 20.09.2017 BY
THE LEARNED LXVI ADDITIONAL SESSIONS JUDGE AT
BANGALORE, ACQUIT THE PETITIONER AND ETC.,
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
1. This revision petition is directed against the
judgment dated 20.09.2017 passed in Crl.A. No. 649/2017
by LXVI Additional City Civil and Sessions Judge,
Bengaluru, whereunder the judgment of conviction of
petitioner dated 03.04.2017 passed in C.C. No. 8433/2016
by the XIX ACMM, Bengaluru, convicting the petitioner for
offence punishable under Section 138 of the Negotiable
Instruments Act (for short hereinafter referred to as the
N.I. Act) has been affirmed.
2. Heard learned counsel for petitioner and
learned counsel for respondent.
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3. Brief facts of the prosecution case is that the
petitioner - accused approached the respondent -
complainant for financial help in order to develop his
business and borrowed hand loan of Rs.1,00,000/-. In
order to repay the said amount he had issued cheque
bearing No. 223137 dated 10.12.2025 for a sum of
Rs.1,00,000/- drawn on Canara Bank, Begur Branch,
Bengaluru. Said cheque, on presentation, came to be
dishonoured for reason `funds insufficient' under Bank
memo dated 21.12.2015. The respondent - complainant
got issued demand notice dated 30.12.2015 and the same
came to be served on the petitioner - accused on
01.01.2016. The respondent - complainant presented the
complaint on 13.01.2016. The trial Court, took cognizance
against the petitioner - accused for offence under Section
138 of the N.I. Act. The complainant examined himself as
P.W.1 and got marked Ex.P.1 to Ex.P.4. Statement of the
accused has been recorded under Section 313 of Cr.P.C.
The accused has examined himself as D.W.1 and got
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marked Ex.D.1 and Ex.D.2. The trial Court, appreciating
the evidence on record, has convicted the petitioner -
accused for offence under Section 138 of the N.I. Act and
imposed sentence of fine of Rs.1,75,000/- and in default,
to undergo simple imprisonment for 6 months. Said
judgment of conviction has been challenged by the
petitioner - accused before the Sessions Court in Crl.A.
No. 649/2017 and the same came to be dismissed. The
petitioner - accused has filed this revision petition
challenging the said judgments.
4. Learned counsel for petitioner would contend
that the legal notice has been served on the petitioner on
01.01.2016 and complaint is filed on 13.01.2016. The
complaint has been filed prior to accrual of cause of action
and therefore, the complaint is a pre-mature complaint.
5. Learned counsel for respondent - complainant
admits that the complaint is a pre-mature complaint and
he seeks liberty to file a fresh complaint against the
petitioner - accused by condoning the delay.
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6. Having heard learned counsel for the parties,
this Court has perused the impugned judgments and trial
Court records.
7. This fact is not in dispute that after
dishonouring of the cheque issued by the petitioner -
accused, the respondent - complainant filed a criminal
complaint against the petitioner - accused under Section
138 of the N.I. Act before the XIX Additional Chief
Metropolitan Magistrate, Bengaluru, on 13.01.2016. This
fact is also not in dispute that after dishonouring of the
cheque issued by the petitioner - accused, the respondent
- complainant sent a legal notice to the petitioner -
accused on 30.12.2015 asking him to pay the cheque
amount within a period of 15 days. The record indicates
that the petitioner - accused has received the said legal
notice on 01.01.2016. The respondent - complainant filed
a complaint under Section 138 of the N.I. Act against the
petitioner accused on 13.01.2016. This fact is also not in
dispute that the petitioner - accused faced trial for the
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above offence and finally he was found guilty for the
aforesaid offence by the trial Court vide judgment dated
03.04.2017 wherein the petitioner - accused has been
convicted and sentenced to pay fine of Rs.1,75,000/- and
in default of payment of fine, to undergo simple
imprisonment for 6 months. This fact is also not in dispute
that aggrieved by the said judgment, an appeal was filed
by the petitioner - accused before the Sessions Court and
the appellate Court has dismissed the appeal filed by the
petitioner - accused confirming the judgment of
conviction.
8. A perusal of Section 138(c) of N.I. Act indicates
that offence under Section 138 is made only if the drawer
of the cheque fails to make the payment of the cheque
amount of money to the payee or to the holder in due
course of the cheque within 15 days of the receipt of the
notice. If the payment is not made by the drawer of the
cheque within 15 days of receipt of notice, then as per
Section 142(b) of the N.I. Act a complaint can be filed
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within a period of 1 month on the date on which the cause
of action arises under Section 138(c) of the N.I. Act.
Cognizance can only be taken upon a complaint submitted
in writing.
9. The issue involved in this revision petition is no
more res integra as this issue came before the Hon'ble
Apex Court in the case of Yogendra Pratap Singh Vs.
Savitri Pandey reported in (2015) AIR (SC) 157 where
the Apex Court formulated the following 2 questions for
consideration.
i. Can cognizance of an offence punishable
u/s 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,
ii. If answer to question No. 1 is in the
negative, can the complainant be
permitted to present the complaint again
notwithstanding the fact that the period of
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one month stipulated u/s 142(b) for the
filing of such a complaint has expired?
10. The Apex Court in the case of Yogendra
Pratap Singh (supra) while interpreting the provisions
contained under Sections 138 and 142 of the N.I. Act
answered the above two questions in paragraph Nos. 34 to
41 and they read thus:
34. Insofar as the present reference is concerned,
the debate broadly centers around clause (c) of the
proviso to Section 138 of the NI Act. The
requirement of clause (c) of the proviso is that the
drawer of the cheque must have failed to make the
payment of the cheque amount to the payee within
15 days of the receipt of the notice. Clause (c) of the
proviso offers a total period of 15 days to the drawer
from the date of receipt of the notice to make
payment of the cheque amount on its dishonour.
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
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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 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
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 law. It is not the
question of prematurity of the complaint where it is
filed before expiry of 15 days from the date on which
notice has been served on him, it is no complaint at
all under law. As a matter of fact, Section 142 of the
NI Act, inter alia, 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 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
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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.
36. A complaint filed before expiry of 15 days from
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. 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 reiterates the position of the point of time when
the cause of action has arisen, leaves no manner 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 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
has elapsed. We have no doubt that all the five
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essential features of Section 138 of the NI Act, as
noted in the judgment of this Court in Kusum Ingots
& Alloys Ltd. and which we have approved, 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 under Section 138 of the
NI Act.
37. We, therefore, do not approve the view taken by
this Court in Narsingh Das Tapadia and so also the
judgments of various High Courts following Narsingh
Das Tapadia1 that if the complaint under Section
138 is filed before expiry of 15 days from the date on
which notice has been served on the drawer/accused
the same is premature and if on the date of taking
cognizance a period of 15 days from the date of
service of notice on the drawer/accused has expired,
such complaint was legally maintainable and, hence,
the same is overruled.
38. Rather, the view taken by this Court in Sarav
Investment & Financial Consultancy wherein this
Court held that service of notice in terms of Section
138 proviso (b) of the NI Act was a part of the cause
of action for lodging the complaint and
communication to the accused about the fact of
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dishonouring of the cheque and calling upon to pay
the amount within 15 days was imperative in
character, commends itself to us. As noticed by us
earlier, 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. We approve the decision of
this Court in Sarav Investment & Financial
Consultancy and also the judgments of the High
Courts which have taken the view following this
judgment that the complaint under Section 138 of
the NI Act filed before the expiry of 15 days of
service of notice could not be treated as a complaint
in the eye of law and criminal proceedings initiated
on such complaint are liable to be quashed.
39. Our answer to question (i) is, therefore, in the
negative.
40. The other question is that if the answer to
question (i) 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 has expired.
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41. 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
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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."
11. Question No. (i) was answered by the Hon'ble
Apex Court by holding that the complaint under Section
138 of the N.I. Act filed before the expiry of 15 days of
service of notice cannot be treated as a complaint in the
eye of law and criminal proceedings initiated on such
complaint are liable to be quashed. Thereafter, the second
question was answered by the Apex Court 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
proviso to clause (b) of Section 142 of the N.I. Act.
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12. It is worthy to note here that this decision was
made applicable to all such pending cases where a
complaint was submitted prior to the expiry of 15 days
from receipt of the notice.
13. The aforesaid view taken by the Hon'ble Apex
Court in the case of Yogendra Pratap Singh (supra)
has been followed by the Hon'ble Apex Court in the case of
Gajanand Burange Vs. Laxmi Chand Goyal reported in
2022 LiveLaw (SC) 682 wherein in paragraph Nos. 7 to
11 it has been held as under:
"7. In the present case, while the notice was
received by the appellant on 8 November 2005, the
complaint was filed before the period of fifteen days
was complete. The complaint could have been filed
only after 23 November 2005, but was filed on 22
November 2005. In view of the legal bar which is
created by Section 142 of the NI Act, as explained in
the three-Judge Bench decision of this Court, taking
of cognizance by the Court was contrary to the law
and the complaint was not maintainable before the
expiry of the period of fifteen days from the date of
its receipt by the appellant.
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8. However, on behalf of the respondent, it has been
urged that the second issue which was raised before
the three-Judge Bench has been dealt with in the
following terms:
"41... 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
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the court of sufficient cause. Question (ii) is
answered accordingly."
9. We are of the view that the respondent would be
entitled to the benefit of the determination on the
second issue, as extracted above.
10. Hence, the following order:
(i) The impugned judgment and order of the Single
Judge of the High Court of Chhattisgarh dated 28
November 2018 shall stand set aside; and
(ii) The respondent 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 respondent
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. In the event that the second complaint is filed
within a period of two months from the date of this
order, we request the trial court to dispose of the
complaint within a period of six months."
14. From the aforesaid law laid down by the Hon'ble
Apex Court in the case of Yogendra Pratap Singh
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(supra) and Gajanand Burange (supra) it is apparent
that in a case where the complaint was filed before the
expiry of 15 days stipulated in the notice which is required
to be served upon the drawer of the cheque, the Court
cannot take cognizance thereof. However, second
complaint on the same cause of action has been held to be
maintainable and the delay in filing such complaint shall
be deemed to have been condoned.
15. The petitioner - accused even though has not
taken up the said defence before the trial Court and the
appellate Court has taken up said contention in the
present revision petition.
16. Drawer of the cheque cannot be allowed to
escape from prosecution merely on a technical count that
a premature complaint was filed against him before expiry
of the statutory period of 15 days as per the mandate of
Section 138(c) of N.I. Act. Such drawer of the cheque is
liable to be prosecuted in a second successive complaint
filed on the same facts by the holder of the cheque. The
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drawer of the cheque would not be absolved from penal
consequences of dishonouring of cheque issued by
him/her.
17. Following the judgments passed by the Hon'ble
Apex Court in the case of Yogendra Pratap Singh
(supra) and Gajanand Burange (supra) it can be safely
held that the impugned judgments passed by the trial
Court and the appellate Court are not sustainable in the
eye of law and the same are liable to be set aside and they
are hereby set aside.
18. Judgment passed by the XIX Additional Chief
Metropolitan Magistrate, Bengaluru, stands modified
granting liberty to the respondent - complainant to file a
fresh complaint against the petitioner - accused within a
period of 1 month from today. In case such complaint is
filed by the respondent - complainant within a period of 1
month, the delay in filing the complaint would be
condoned under proviso to Section 142 of the N.I. Act. It
is expected from the trial Court to decide the said
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complaint after affording due opportunity of hearing to the
petitioner - accused expeditiously as early as possible,
preferably within a period of 6 months thereafter.
19. The trial Court is further directed to return all
the original / certified documents to the respondent -
complainant after retaining the certified copies of the same
on record.
20. Accordingly, the instant criminal revision
petition stands disposed off.
21. Needless to observe that the trial Judge would
decide the matter on merits of the case and after
considering the evidence led by both the sides. The trial
Court would not be influenced by any of the observations
made hereinabove while deciding the complaint.
22. Registry is directed to transmit the trial Court
records to the trial Court along with copy of this order
forthwith.
23. Amount in deposit, deposited by the petitioner
- accused, shall be kept in Fixed Deposit in Karnataka
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Bank, CMM Court Branch, in the name of the Deputy
Registrar for a period of 6 months with auto renewal and
successful party is entitled to the said amount in deposit.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
