Section 138 complaint requires proved service of demand notice and expiry of the statutory waiting period before filing.

A complaint under Section 138 of the Negotiable Instruments Act is maintainable only after service or deemed service of the demand notice and expiry of 15 days without payment. The record did not prove the actual date of service, and the presumption of service drawn merely from dispatch to the accused's district was held unsustainable. As the complaint was instituted before the statutory waiting period had elapsed, it was premature and not legally maintainable. The conviction and sentence therefore could not stand, and the impugned judgments were set aside.

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Issues: Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 was maintainable when the date of service of the demand notice was not proved and the complaint was filed before expiry of the statutory waiting period.

Analysis: The complaint prosecution under Section 138 depends upon fulfilment of the statutory ingredients, including service of demand notice and failure to pay within 15 days of receipt of that notice. The record did not establish the actual service date of the registered notice. The courts below presumed service merely because the notice had been sent to the district where the accused resided, and treated it as served within a few days of dispatch. That presumption was held to be unsustainable. The legal position applied was that the cause of action arises only after expiry of 15 days from receipt or deemed service of notice, and a complaint filed before that stage is premature. On the facts, even on deemed service, the complaint was instituted before the statutory period had elapsed.

Conclusion: The complaint was premature and not legally maintainable, so the conviction and sentence could not stand.

Final Conclusion: The revision succeeded, the accused was acquitted, and the impugned judgments were set aside.

Ratio Decidendi: A complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable only after the demand notice has been served or deemed served and 15 days have expired thereafter; in the absence of proof of service, a complaint filed before expiry of that statutory period is premature and liable to fail.

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