Section 138 complaint filed early is not void if cognizance is taken after the notice period expires

A complaint under Section 138 of the Negotiable Instruments Act filed before expiry of the 15-day notice period is not automatically premature, because filing the complaint and taking cognizance are distinct stages. The statutory bar applies to taking cognizance before the cause of action arises on expiry of 15 days from service of notice, not to the mere presentation of the complaint. If cognizance is taken after the statutory period, the complaint remains maintainable. On that reasoning, the revisional order was quashed and the Magistrate's summoning order restored.

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Issues: Whether a complaint under Section 138 of the Negotiable Instruments Act filed before expiry of 15 days from the date of notice is liable to be dismissed as premature, and whether the bar in the proviso concerns filing of the complaint or only taking cognizance.

Analysis: The filing of a complaint and taking cognizance are distinct stages. Under Section 138, the statutory embargo operates on taking cognizance before the cause of action arises on expiry of 15 days from service of notice, not on the mere presentation of the complaint. If a complaint is lodged earlier, it does not become incompetent merely for that reason, and the court may await the accrual of cause of action before proceeding. In the present matter, although the complaint had been filed before expiry of 15 days, cognizance was taken much later, after the statutory period had run out.

Conclusion: The complaint was not liable to be dismissed as premature solely because it had been filed before expiry of 15 days from notice. The revisional order setting aside the Magistrate's order was unsustainable and was quashed, with restoration of the summoning order.

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