Legal Notice Issued Beyond 30 Days Fatal To Section 138 Complaint: Himachal Pradesh HC

Failure to issue a demand notice within the mandatory 30-day statutory timeline post-cheque dishonour strictly invalidates criminal prosecution for dishonour of cheques. The Himachal Pradesh High Court has affirmed that even a single day's delay in issuing a statutory legal notice defeats the maintainability of a complaint, as mandatory conditions under section 138 of the Negotiable Instruments Act cannot be relaxed on technical or equitable grounds.

In an order delivered by Justice Rakesh Kainthla, the High Court declined to grant leave to appeal against a trial court's order acquitting an accused due to a delayed legal notice.

Strict Construction of Statutory Timelines Under NI Act

The High Court emphasized that compliance with all proviso conditions under Section 138 is a sine qua non for maintaining a criminal complaint. The Court noted that the bank return memo was received on August 6, 2018, whereas the legal demand notice was dispatched on September 6, 2018 falling on the 31st day after excluding the date of receipt.

The Court, in its reasoning, observed: "The memo of dishonour was received on 06.08.2018, whereas the notice was issued on 06.09.2018. Therefore, the notice was issued beyond 30 days provided under Section 138 (b) of the NI Act. The issuance of the notice within 30 days of the receipt of the memo of dishonour is an essential condition for filing the complaint, which was not fulfilled in the present complaint; therefore, the learned Trial Court was justified in dismissing the complaint."

The Court cited Supreme Court precedent in Sivakumar v. Natarajan ( "(2009) 13 SCC 623": 2009 CaseBase(SC) 611), which held that Section 9 of the General Clauses Act, 1897 does not apply to extend limitation when the statute explicitly uses the term "within a period of thirty days". This interpretation was subsequently followed in Kamlesh Kumar v. State of Bihar ( "(2014) 2 SCC 424": 2013 CaseBase(SC) 974) by the Apex Court and reiterated by the Delhi High Court in Deepak Nagar v. State, establishing that dispatches made on the 31st day fall outside the limitation period.

The Court issued the following directions:

"Hence, the present application fails and is dismissed. Since the application for granting leave to appeal has been dismissed, the proposed appeal does not survive and is disposed of."

Background

The dispute originated from a complaint filed under Section 138 of the Negotiable Instruments Act alleging that the complainant advanced a friendly loan of ₹1,50,000/- to the accused in September 2017. To discharge the liability, the accused issued a cheque dated July 20, 2018, which was dishonoured upon presentation due to "insufficient funds".

Upon receiving the memo of dishonour from the bank on August 6, 2018, the complainant dispatched a legal demand notice on September 6, 2018. After the accused failed to repay the sum, criminal proceedings were initiated. During trial, the accused admitted his signature on the cheque in his statement under Section 313 of the Code of Criminal Procedure but claimed it was given to a friend.

The Trial Court acquitted the accused on the threshold ground that the legal notice sent on September 6, 2018, was issued on the 31st day and thus breached the mandatory 30-day requirement under Section 138(b) of the Negotiable Instruments Act. Aggrieved, the complainant approached the High Court seeking leave to appeal, contending that a single day's delay was a bona fide error on the part of his advocate. Rejecting this contention, the High Court affirmed the acquittal.

Case Details:
Case No.: Cr.MP(M) No. 321 of 2025
Neutral Citation: 2026:HHC:33154
Case Title: Ravinder Kumar v. Anil Kumar
Appearances:
For the Petitioner(s): Mr Aditya Kaushal, Advocate.
For the Respondent(s): Nemo

Source: 2026 CaseBase(HP) 4576