Complaint Under Section 138 NI Act Premature if Filed Before Expiry of Deemed Service Period: Himachal Pradesh HC

The High Court of Himachal Pradesh has quashed a conviction under the Negotiable Instruments Act, 1881, ruling that a criminal complaint filed before the completion of the mandatory 15-day notice period, particularly in cases of 'deemed service,' is legally non-est and lacks jurisdiction.

In a significant intervention, Justice Rakesh Kainthla set aside the concurrent findings of the lower courts, emphasizing that the 30-day window for presumed service of a notice sent by registered post must be strictly exhausted before the cause of action for a complaint under Negotiable Instruments Act, 1881 arises.

Key Takeaways

Jurisdictional Bar on Premature Filings

Failure to wait for the mandatory 15-day period after notice service renders a complaint 'no complaint in the eyes of law,' barring courts from taking cognizance.

Deemed Service Timeline Clarified

In the absence of a return memo, service of notice is presumed only after the expiry of 30 days from dispatch, significantly pushing back the timeline for filing legal actions.

Revisional Scope on Jurisdictional Errors

Even if not raised in trial, questions of jurisdiction and limitation can be entertained in revision as they go to the root of the court's authority.

Legal Validity of Deemed Notice Service

The court examined the procedural requirements of Section 138 of the Negotiable Instruments Act, 1881. It noted that the complainant had sent the notice on October 19, 2016. Applying the principle laid down in Subodh S. Salaskar v. Jayprakash M. Shah ( "(2008) 13 SCC 689": 2008 CaseBase(SC) 1996), the court held that 30 days must be allowed for the service of notice when sent by registered post. Consequently, the notice was deemed served only on November 18, 2016. Since the complaint was filed on November 8, 2016 ten days before the service was even presumed it was hit by a legal bar.

Strict Adherence to Section 142 NI Act

Referring to the three-judge bench decision in Yogendra Pratap Singh v. Savitri Pandey ( "(2014) 10 SCC 713": 2014 CaseBase(SC) 609), as followed in Gajanand Burange v. Laxmi Chand Goyal, the Court underscored that commission of an offence is a sine qua non for filing a complaint. The Court, in its reasoning, observed: "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 eyes of the law, obviously, no cognizance of an offence can be taken on the basis of such a complaint."

Limits of Revisional Jurisdiction

While the respondent argued that the petitioner could not raise new pleas in revision, the court cited Kuntegowda v. Thurubaiah ( "2026 SCC OnLine SC 1485": 2026 CaseBase(SC) 721) to define the contours of its power. It noted that while it should not re-appreciate evidence like an appellate court, it must intervene when an order is 'untenable in law.' The court clarified that since the prematurity of a complaint is a jurisdictional defect, it could be raised at the revisional stage.

Court Directions

The Court has following directions:

"In view of the above, the present revision is allowed, and the judgment dated 19.10.2022 and order dated 28.10.2022 passed by learned Judicial Magistrate First Class, Chopal, District Shimla, H.P., as affirmed by learned Sessions Judge (Forests), Shimla vide judgment dated 25.03.2025, is ordered to be set aside, and the complaint is dismissed as premature. A copy of the judgment, along with records of the learned Courts below, be sent back forthwith."

Ratio

A complaint under Section 138 of the Negotiable Instruments Act, 1881, filed before the expiry of 15 days from the date of receipt (or deemed receipt) of the demand notice, is a nullity in law. In cases where the date of service is unknown, a presumption of service under Section 27 of the General Clauses Act or similar principles arises only after 30 days from dispatch; any cognizance taken on a complaint filed before the expiry of 15 days post such 30-day period is void for lack of jurisdiction.

Background

The dispute began when the accused allegedly purchased 300 cartons of apples for ₹5,25,000/-. While a partial cash payment was made, a cheque for the balance of ₹4,00,000/- was dishonoured due to "insufficient funds." The complainant issued a legal notice, but since it was not returned, he presumed service and filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

The Trial Court convicted the accused, sentencing him to one year of imprisonment and compensation. This was upheld by the Sessions Court. In revision before the High Court, the petitioner argued that the complaint was filed prematurely based on the 'deemed service' rule. The High Court relied on Manoj Kumar Nag v. State of Jharkhand, Anil Kumar Goel v. State of U.P., and Damodar Mallick vs. State of Jharkhand and Ors. to establish that the 30-day presumption for service is the standard, making the filing premature and the subsequent conviction unsustainable.

Case Details:
Case No.: Cr. Revision No. 354 of 2025
Neutral Citation: 2026:HHC:37620
Case Title: Basant Versus Virender Singh
Appearances:
For the Petitioner(s): Mr Abhay Gupta, Advocate, vice Mr Sarthak Mehta, Advocate.
For the Respondent(s): Mr N.S. Chandel, Senior Advocate, with Ms Kanika Verma, Advocate.

Source: 2026 CaseBase(HP) 7986