Section 138 NI Act complaint failed for omission of statutory non-payment averment after notice, leading to quashing.

A complaint under Section 138 of the Negotiable Instruments Act was held defective because it did not aver that the accused failed to pay within 15 days of receipt of notice. The court treated that omission as fatal, since non-payment within the statutory period is an essential ingredient of the offence and the cause of action arises only on that default. The sworn statement also lacked the required averment, so the criminal proceedings were quashed.

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Issues: Whether the complaint under Section 138 of the Negotiable Instruments Act was liable to be quashed for failure to aver that the accused did not make payment within 15 days of receipt of notice.

Analysis: The complaint disclosed dishonour of the cheque and issuance of notice, but it did not state that the accused failed to pay the amount within the statutory period after receipt of notice. The sworn statement also did not contain any such averment. Since the cause of action under Section 138 arises only on failure to make payment within 15 days of the notice, the omission went to the root of the prosecution.

Conclusion: The complaint lacked an essential ingredient of the offence under Section 138 of the Negotiable Instruments Act and the criminal proceedings were quashed.

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