Filing of 138 complaint-matter referred to full bench

Dishonour of cheque filing complaint prematurely.

An act of the court shall prejudice no man.Further no man should suffer because of the mistake of the court.No man should suffer a wrong by technical irregularities.The case to be reffered is of Zenith Fashions Makers P ltd Verses Ultimate Fashion Makers Ltd  (2006) 130 Comp Cas 526 (Del).

If the answer to question no 1 is no ,a fresh complaint u/s 138 of the Act could not be filed.

Therefore the complainant would be denied the right to justice for no fault of his own.No prejudice

of any kind had been caused to the accused by pre mature action of the complainant.The mere technical flaw could not be allowed to defeat the ends of justice.Hence it would be incorrect and unjust to quash the complaint.

Whatever the SC states in this full bench but surely they are going to consider following:

The cause of action arises only on expiry of 15 Days, so no cause of action is present on the day the complaint is filed, and hence the first complaint is defective and without any basis. This is the mistake on the part of complainant lawyer, this is possible  mistake on the part of Judge (if at all cognizance was taken and this question came after that), if so these gentleman should be sent back to class for refreshing their studies. Making someone accused without the real cause of action is illegal, court may have an option to accept the condonation of delay if the 30 Days have expired after cause of action. I Do not think Supreme Court will give any sweeping order on this, court will not accept the contention as stated above, that is of no man should be injured by technicality. If the complainant is injuring himslef in haste, what can court do.

Take for example any sports where start time is important, you start it before the time and you get disqualified, the person disqualified cannot plead for another chance.

When the law states that the criminal aspect startes only on expiry of 15 days (not on cheque bounce, not on notice, only on failure to pay within 15 Days), so prematurely filing complaint is without any legal sanctions and must be thrown aside. Ignorance cannot be admitted by court of law, complainant or his learned counsel can neither say that it was a mistake nor can they plead that they were ignorant.

The question is who and when this irregularity was observed ?

For argument sake if we say that this irregularity was found before the expiry of stipulated period, then no one would have stopped the complainant to file the complaint again.

If the irregularity was observed by the accused after the trial started, then the benefit of accused vigilance cannot be given to complainant.

If the irregularity was found out by the complainant during the course of proceeding, then also he cannot seek for amendment, as the complaint is ab initio defective. So question infront of honorable SC is just the wastage of time, it has no merit, the complainant is not at all prejudiced by technicality, but accused is because he was made accused even before the cause of action, so he has the right to get the complaint quashed. Complainant can seek civil remedy.

The SC will also consider the aspect that in general criminal cases are not stopped by delays or latches, but cases under S.138 are regulatory offences between two parties, they are quasi civil and quasi criminal in nature so strict compliance to law has to be there before anyone can be made accused.

The intention of the Parliament, while enacting the provision is very clear. No complaint can be filed before expiry of 15 days. The Honourable the Supreme Court can interpret the provision, but I do not think that the out come of the reference would come out as a "judicial legislation". 

Drawee can pay cheque amount in court after receipt of summons of court if he has not received notice sent by drawer

This is also one of the major bloomers by Supreme Court.  Once the cause of action arises no court of law can advise and generalise like this. Settlement can be carried out between the parties and matter can be compounded. Court cannot say ok, you did not receive the notice, so pay now and you are free. This is not the way act is.