Case Note & Summary
The petitioners, accused in a cheque dishonour case, filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking to set aside an order dated 30.12.2021 passed by the III Additional District and Sessions Judge, Kalaburagi, in Criminal Revision Petition No. 87/2021. The revision petition had confirmed the trial court's order taking cognizance of the complaint filed by the respondent-complainant under Section 138 of the Negotiable Instruments Act, 1881. The core issue was that the complaint was filed before the expiry of the mandatory 15-day notice period required under Section 138 of the NI Act. The petitioners argued that the complaint was premature and the proceedings were an abuse of process. The High Court, after hearing the parties, found that the complaint was indeed filed before the expiry of the 15-day period from the date of receipt of the notice by the accused. The court held that the requirement of giving 15 days' notice is mandatory and non-compliance renders the complaint invalid. Consequently, the court allowed the petition, set aside the impugned order, and quashed the proceedings in the trial court.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Mandatory Notice Period - Complaint filed before expiry of 15 days from receipt of notice is premature and cannot be sustained - Held that the requirement of giving 15 days' notice is mandatory and failure to wait renders the complaint invalid (Paras 1-5).
Issue of Consideration
Whether the criminal revision order confirming the trial court's cognizance of a complaint under Section 138 of the Negotiable Instruments Act, 1881, was sustainable when the complaint was filed before the expiry of the mandatory 15-day notice period.
Final Decision
The petition is allowed. The order dated 30.12.2021 in Criminal Revision Petition No. 87/2021 passed by the III Additional District and Sessions Judge, Kalaburagi, is set aside. Consequently, the proceedings in the trial court are quashed.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- mandatory notice period
- 15 days
- complaint premature
- Section 482 CrPC
- inherent powers
- quashing of proceedings
Case Details
2023 LawText (KAR) (02) 41
Criminal Petition No. 200339 of 2022
Sri Ravi B. Naik (Senior Counsel for petitioners), Smt. Maya T.R. (HCGP for R1), Sri Basavaraj M. Policepatil (for R2)
Sri Rajendra Sing, Sri Ravindra Singh, Sri Devindra Singh, Surindra Singh
The State of Karnataka through Brahmapur Police Station, Kalaburagi, and Kasturibai W/o Prabhu Singh Thakur
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Nature of Litigation
Criminal petition under Section 482 CrPC to quash proceedings in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioners sought to set aside the order dated 30.12.2021 in Criminal Revision Petition No. 87/2021 passed by the III Additional District and Sessions Judge, Kalaburagi, and quash the proceedings.
Filing Reason
The complaint under Section 138 of the NI Act was filed before the expiry of the mandatory 15-day notice period, making it premature and an abuse of process.
Previous Decisions
The trial court took cognizance of the complaint, which was confirmed by the revisional court in Criminal Revision Petition No. 87/2021 on 30.12.2021.
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, filed before the expiry of the mandatory 15-day notice period, is maintainable.
Submissions/Arguments
Petitioners argued that the complaint was premature as it was filed before the expiry of 15 days from the date of receipt of notice by the accused, violating the mandatory requirement under Section 138 of the NI Act.
Respondents argued in support of the impugned order, but the court found merit in the petitioners' contention.
Ratio Decidendi
The requirement of giving 15 days' notice under Section 138 of the Negotiable Instruments Act, 1881, is mandatory. A complaint filed before the expiry of the notice period is premature and cannot be sustained. Such proceedings are an abuse of process and liable to be quashed under Section 482 CrPC.
Judgment Excerpts
This petition is filed under Section 482 Cr.P.C., with the following prayer: ... set aside the order dated 30.12.2021 in Crl.Rev.P.No. 87/2021 passed by the III Addl. District and Sessions Judge at Kalaburagi, in the interest of justice and equity.
Heard Sri Ravi B. Naik, learned Senior counsel for the petitioners, Smt. Maya T.R., learned High Court Government Pleader for the first respondent-State and Sri Basavaraj M. Policepatil for the second respondent.
Procedural History
The respondent-complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, before the trial court, which took cognizance. The petitioners filed a criminal revision petition (Crl.Rev.P.No. 87/2021) before the III Additional District and Sessions Judge, Kalaburagi, which was dismissed on 30.12.2021. Aggrieved, the petitioners filed the present petition under Section 482 CrPC before the High Court of Karnataka, Kalaburagi Bench.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
