1 2025:CGHC:42917 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 56 of 2019 1 - Akhilesh Rathore S/o Late Shri Chandrika Prasad Rathore Aged About 36 Years Working On The Post Of Teacher R/o Maa Kali Darbar, ward No.11, Janjgir Police Station Janjgir District Janjgir Champa Chhattisgarh ... Appellant versus 1 - Vijay Marathe S/o Late Suesh Marathe R/o Purana Chandniya Para, Ward No. 16, Janjgir District Janjgir Champa Chhattisgarh. Working Place Cleark At Govt. Hr. Sec. School Bhadesar Police Station Pamgarh District Jangir Champa Chhattisgarh 2 - State Of Chhattisgarh Through District Magistrate Janjgir District Jangir Champa Chhattisgarh ... Respondents For Appellant : Mr. V.K. Pandey, Advocate For Respondent No.1 : Mr. Ashutosh Trivedi, Advocate For State/Respondent No.2 : Mr. Dilman Rati Minj, GA Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 25/08/2025 PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.08.26 10:37:25 +0530 2 1. This Acquittal Appeal has been preferred against the judgment dated 19.04.2017 passed by the Sessions Judge, Janjgir-Champa in Criminal Appeal No.08/2017, whereby, the learned Sessions Judge while allowing the Appeal preferred by respondent No.1 herein, has set aside the judgment of conviction and order of sentence dated 23.01.2017 passed by the Judicial Magistrate First Class, Nawagarh in Criminal Case No.565/2016 and acquitted respondent No.1 of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act, 1881’). 2. At the outset, learned counsel for the appellant/complainant would submit that Hon’ble Supreme Court in the matter of Gajanand Burange Vs. Laxmi Chand Goyal1 has categorically held that when a premature complaint has been filed, the same is not maintainable and a second complaint may be filed. He submits that the Appellate Court has categorically recorded a finding at para No.13 that the complaint is premature and as such the same was not maintainable. He submits that this Appeal may be disposed of in view of the aforesaid dictum and a liberty may be reserved in favour of the appellant/complainant to file a second complaint in accordance with law as also to seek benefit of the proviso to Section 142 (b) of the Act, 1881 for satisfying the trial Court as to the sufficient cause for the delay in instituting the complaint. 3. Learned counsel for respondent No.1/accused would not oppose the aforesaid prayer. 4. I have heard learned counsel for the parties and perused the documents annexed with the Appeal with utmost circumspection. 1 2022 SCC OnLine SC 1711 3 5. In the matter of Gajanand Burange (supra), it has been categorically observed that no complaint can be filed for an offence under Section 138 of the Act, 1881, unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law and the complaint itself is not maintainable and there is no bar to the complainant to institute a fresh complaint. Relevant paras 6 to 8 of the said judgment read thus:- “6. The first issue was resolved by paragraph 35 of the judgment2, which is extracted below: “35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines “complaint”. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice 2 Yogendra Pratap Singh Vs. Savitri Pandey and Another, (2014) 10 SCC 713 4 has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. 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.” 7. In the present case, while the notice was received by the appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 5 2005, but was filed on 22 November 2005. In view of the legal bar which is created by Section 142 of the NI Act, as explained in the three-Judge Bench decision of this Court, taking of cognizance by the Court was contrary to the law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receipt by the appellant. 8. However, on behalf of the respondent, it has been urged that the second issue which was raised before the three- Judge Bench has been dealt with in the following terms: “41… Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh 6 complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly.” 6. In the present case, it is not disputed that the complaint was filed before expiry of 15 days. In view of the legal bar which is created by Section 142 of the Act, 1881, taking cognizance of the complaint by the Court was contrary to the law and the complaint was not maintainable before the expiry of 15 days period from the date of receipt by the appellant. 7. Since the appellant/complainant has filed the complaint before the expiry of 15 days from the date on which the notice was served, earlier complaint is not maintainable and in fact is no complaint at all in the eye of the law. In such circumstances, appellant/complainant is at liberty to institute a fresh complaint within a period of 30 days from the date of this order and he would also be at liberty to seek benefit of the proviso to Section 142 (b) of the Act, 1881 for satisfying the trial Court as to the sufficient cause for delay in instituting the complaint. 8. With the aforesaid observations, this Acquittal appeal stands disposed of. It is made clear that the finding recorded by the First Appellate Court shall not create any impediment in consideration of fresh complaint and the same shall be decided on merits, if fresh complaint is filed and cognizance is taken by the concerned Court. Sd/- (Deepak Kumar Tiwari) Priyanka Judge