Case Note & Summary
The petitioner, Padamsingh Dhulsingh Sisodiya, filed a petition under Articles 226 and 227 of the Constitution of India seeking quashing of Criminal Case No. 61461 of 2022 pending before the Addl. Senior Civil Judge and ACJM, Surat, for an offence under Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that the petitioner issued a cheque of Rs. 20 lakhs in favour of the complainant, which was dishonoured with the remark 'referred to drawer'. The complainant issued a demand notice dated 25.08.2022, which was served on the petitioner on 29.08.2022. Since the petitioner did not make payment, the complainant lodged the complaint on 12.10.2022. The petitioner argued that the complaint was filed prematurely, before the expiry of the mandatory 15-day notice period from the date of service. The court examined the record and found that the notice was served on 29.08.2022, and the complaint was filed on 12.10.2022, which is within 15 days from the date of service. The court held that the complaint was premature and not maintainable, as the payee must wait for 15 days after service of notice before filing a complaint. The court quashed the criminal case and all consequential proceedings.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice Period - Complaint filed before expiry of 15 days from service of demand notice is premature and not maintainable - The court held that the mandatory notice period under Section 138 NI Act must be strictly complied with, and filing a complaint prior to its expiry renders the complaint liable to be quashed (Paras 4-5).
Issue of Consideration
Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed before the expiry of 15 days from the date of service of demand notice, is maintainable and liable to be quashed.
Final Decision
The court allowed the petition and quashed Criminal Case No. 61461 of 2022 pending before the Addl. Senior Civil Judge and ACJM, Surat, along with all consequential proceedings arising therefrom.
Law Points
- Section 138 NI Act
- notice period
- premature complaint
- quashing
- mandatory requirement
Case Details
2026 LawText (GUJ) (03) 947
R/Special Criminal Application (Quashing) No. 3142 of 2026
HL Patel Advocates for Applicant, Mr. Himanshu Patel, APP for Respondent No. 1
Padamsingh Dhulsingh Sisodiya
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Nature of Litigation
Criminal quashing petition under Articles 226 and 227 of the Constitution of India challenging a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner sought quashing and setting aside of Criminal Case No. 61461 of 2022 pending before the Addl. Senior Civil Judge and ACJM, Surat, under Section 138 of the Negotiable Instruments Act, 1881.
Filing Reason
The petitioner alleged that the complaint was filed prematurely, before the expiry of the mandatory 15-day notice period from the date of service of demand notice, and thus was not maintainable.
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, was filed before the expiry of the mandatory 15-day notice period from the date of service of demand notice, rendering it premature and liable to be quashed.
Submissions/Arguments
The petitioner argued that the demand notice was served on 29.08.2022, and the complaint was filed on 12.10.2022, which is within 15 days from the date of service, making the complaint premature and not maintainable.
The respondent State opposed the petition, but the court found merit in the petitioner's submission.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act, 1881, must be filed only after the expiry of 15 days from the date of service of the demand notice. Filing the complaint before the expiry of this mandatory period renders the complaint premature and not maintainable, and liable to be quashed.
Judgment Excerpts
The notice was served upon the petitioner on 29.08.2022 and the complaint in question has been filed on 12.10.2022. Thus, the complaint in question has been filed before the expiry of 15 days from the date of service of notice.
In view of the above, the present petition deserves to be allowed and the same is allowed accordingly.
Procedural History
The petitioner filed a quashing petition under Articles 226 and 227 of the Constitution of India before the High Court of Gujarat at Ahmedabad challenging Criminal Case No. 61461 of 2022 under Section 138 of the Negotiable Instruments Act, 1881, pending before the Addl. Senior Civil Judge and ACJM, Surat. The court heard the matter and delivered judgment on 05.03.2026.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Constitution of India: 226, 227
