NI Act S. 138---Case filed before complition of 15 days after notice
Jitendra Raval
(Querist) 03 April 2009
This query is : Resolved
The complinant filed a case under S.138 againt accused before complition of 15 days mandatory time available to the accused for the payment.
The complaintant was in a hurry to screw the accused.
The court has already issued the process.
Will it be tenable in the court of law?
What are the remedies to the accused?
Can he approach high court for quasing the process?
Please suggest the remedies quoting cases if any.
Kiran Kumar
(Expert) 03 April 2009
yes the accused can approach the high court for quashing in the instant matter.
Jithendra.H.J
(Expert) 03 April 2009
the court should have returned the complaint to present it after completion of 15 days.
if the court has issued the notice and has taken the cognizence after completion of 15 days, the complaint survives!
let me know your e-mail id, i will mail you some citatins regarding this
Abhishek Sharma
(Expert) 04 April 2009
Mr Jithendra's view is as per the settled law.
MANISH
(Expert) 04 April 2009
Dear friend,
In your case, the complaint can only be maintainable only if 15 days notice period is expired, and the complaint is made in next one months' time. The same point could be raised at the time of framing of notice, or the same could be done by applying for the quashment before the Hon'ble High Court.
adv. rajeev ( rajoo )
(Expert) 04 April 2009
Complainant had to wait for 15 days which was given to the accused to make the payment. Even accused can file a discharge application in the same court where the complainant is filed or he can challenge the proceess in the high court.
n.k.sarin
(Expert) 04 April 2009
Iagree with the view of Mr. Manish. I think complaint is not legally maintainable.
Ravi Arora
(Expert) 04 April 2009
No i m not agree with mr.Manish rajeev and mr sarin
Mr jithendra is 100% right give your id will send you the citatins
Jithendra.H.J
(Expert) 06 April 2009
even in premature compaliant the accused cannot be absolved , it is held in
1) Narasingdas Vs Goverdhan Das Partani
AIR 2000 SC 2946
2)(2000)7 scc 183
Jithendra.H.J
(Expert) 06 April 2009
In the above cited judgement, it is also held that 'cognizance is taken only when the magistrate initiates judical procedings against the accused like issuance of process'
Jitendra Raval
(Querist) 06 April 2009
Sir, Here the court has also took the cognizance before complition of mandatory 15 days. Please look into this aspect any reply my query
Can u send me the text of above mentioned judgement if possible. My email Id is jhraval@hotmail.com
Hiralal Das
(Expert) 06 April 2009
I agree with the view of the ld. friends.
Guest
(Expert) 07 April 2009
U/S-138 B and C of NI Act, a Complaint can be filed only after the completion of 15 days of notice period, and only then the cause of Action arises. In this case an Accused will get the benefit of pre-mature complaint to succeed his case and he will be released.
Highcourt have inherent powers under CRPC-482 for quashing the illegal complaint , and you can go for that.
Kundan Kr. Singh
(Expert) 26 April 2017
This is immature Complaint.accused can take advantage.
