Section 138 NI Act | Cheque Dishonour Complaint Filed Before Expiry Of 15-Day Statutory Notice Period Non-Est In Law, Cognizance Barred: Allahabad High Court

"From the above law laid down by the Apex Court it is apparent that if a complaint is filed before the expiry of a period of 15 days, from the date of receipt of notice by the drawer as contemplated in Section 138(c) of the Negotiable Instruments Act, 1881, then it is not legally maintainable and the remedy is to file fresh complaint by relying upon the proviso to Section 142(b) of the Act." Reiterating that the completion of the statutory 15-day notice period is an indispensable condition precedent for the accrual of a cause of action, the Allahabad High Court bench of Justice Sandeep Jain on November 2, 2026, held that a complaint instituted under Section 138 of the Negotiable Instruments Act, 1881 prior to the expiry of the mandatory 15-day period is non-est in the eye of the law and legally barred from taking of cognizance.

The dispute arose after the complainant advanced an interest-free loan of Rs. 2,50,000 to the applicant, against which a cheque of Rs. 1,50,000 was issued and subsequently returned unpaid with the remark "kindly contact drawer." The complainant issued a statutory legal demand notice on April 20, 2016, which was allegedly refused by the accused-applicant on the same date. Without waiting for the expiration of the statutory period, the complainant lodged a complaint under Section 138 of the NI Act on May 2, 2016, leading to the issuance of a summoning order on May 10, 2016, by the Additional Chief Metropolitan Magistrate, Kanpur Nagar.

Whether a Magistrate has the legal jurisdiction to take cognizance of an offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis of a complaint presented before the expiry of the 15-day period stipulated in clause (c) of the proviso to Section 138.

Whether the complainant can be permitted to cure a premature filing or must strictly institute a fresh complaint seeking condonation of delay under the proviso to Section 142(b) of the Negotiable Instruments Act, 1881.

Examining the statutory mandate governing cheque dishonour prosecutions, the High Court observed that the commission of an offence is a sine qua non for instituting a complaint and for a Magistrate to assume cognizance under the Act.

Accrual of cause of action is conditional upon the lapse of the full fifteen-day statutory period

The Court underscored that clause (c) of the proviso to Section 138 grants the drawer a statutory period of fifteen days from the receipt or deemed service of notice to discharge the cheque liability.

Relying upon the three-Judge Bench decision of the Supreme Court in Yogendra Pratap Singh v. Savitri Pandey, the Court noted that any complaint filed before the expiry of fifteen days from the date of service of notice is not merely premature, but stands as no complaint at all in the eye of the law.

Premature complaint cannot be validated merely because cognizance was taken after the notice period expired

The Court highlighted that Section 142 of the NI Act imposes an explicit bar on taking cognizance except upon a valid written complaint disclosing an accrued cause of action.

"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," the Court observed while quoting the Apex Court.

Trial court lacks jurisdiction to summon an accused on a non-est complaint

Turning to the factual chronology of the case, the bench noted that the registered notice was dispatched on April 20, 2016, and even if assumed to have been refused on the very same day, the requisite fifteen days available to the applicant would have concluded only on May 5, 2016.

Consequently, presenting the complaint before the Magistrate on May 2, 2016, deprived the court of competent jurisdiction to issue process, rendering the summoning order unsustainable.

The High Court allowed the Section 482 CrPC application and quashed the summoning order dated May 10, 2016, along with the pending complaint proceedings. The complainant was granted liberty to institute a fresh complaint within two months, accompanied by an application under the proviso to Section 142(b) of the NI Act seeking condonation of delay, with a direction to the trial court to dispose of such fresh proceedings within six months.

Date of Decision: November 2, 2026