2022 (8) TMI 414 - HC - Indian Laws

High Court Grants Leave to Appeal in Section 138 Case, Allows Fresh Complaint

The High Court granted leave to appeal in a case involving a complaint under Section 138 of the Negotiable Instrument Act, despite the trial Court ... Dishonor of Cheque - complaint filed by the applicant/appellant under Section 138 Negotiable Instrument Act dismissed on the ground that it has been filed prematurely without the occurrence of any cause of action has not granted liberty to the applicant-appellant to file complaint afresh - HELD THAT:- Perusal of the record of the trial Court in the background of the submissions advanced by learned counsel for the parties would reveal that the trial Court has dismissed/rejected the complaint filed by the applicant-appellant on the ground that the same has been filed prematurely. The trial Court was of the view that a notice for raising demand in respect to the cheque dishonoured was given on 26.06.2015 and the complaint has been filed by the complainant on 10.07.2015 i.e. before 15 days, thus, no cause of action had accrued to the appellant. Perusal of the judgment of the Hon'ble Supreme Court passed in Yogendra Pratap Singh [2014 (9) TMI 1129 - SUPREME COURT], would reveal that the Hon'ble Apex Court has granted a liberty to those complainants whose complaint filed under Section 138 of The Negotiable Instrument Act has been found to be not maintainable on account of the fact that the same has been filed prematurely to file a fresh complaint - The above observation of the Hon'ble Supreme Court would make it clear that it has been opined by the Hon'ble Supreme Court that the complaint which has not proceeded further in view of the fact that the same has been found to have been filed prematurely, a fresh complaint may be filed and in such cases the benefit of the provision contained under Section 142 (b) of The Negotiable Instrument Act, may also be granted to the complainant whose complaint has been dismissed prematurely. The judgment and order of the trial Court dated 13.08.2018 is modified to the extent that the applicant/appellant is now permitted to file a fresh complaint before trial Court with regard to the same cause of action and if such a complaint has been filed, with regard to the same cause of action, the trial Court shall also be under an obligation to provide the benefit of Section 142 (b) of The Negotiable Instrument Act to the applicant/appellant - Appeal allowed in part. Issues:Grant of leave to appeal and filing of a fresh complaint under Section 138 of the Negotiable Instrument Act.Grant of Leave to Appeal:The judgment discusses the issue of granting leave to appeal concerning a complaint filed under Section 138 of the Negotiable Instrument Act. The applicant/appellant sought leave to appeal as the trial Court dismissed the complaint on the grounds of prematurity without granting liberty to file a fresh complaint. The applicant argued that the trial Court did not follow the precedent set by the Supreme Court in 'Yogendra Pratap Singh vs. Savitri Pandey,' which allows for the filing of a fresh complaint in such cases. The learned A.G.A. and counsel for the opposite party did not dispute the legal position but contended that the applicant had the opportunity to file a fresh complaint before the trial Court instead of approaching the High Court. The High Court, after hearing both parties and examining the record, allowed the leave to appeal, noting that the dispute was purely of a legal nature.Filing of Fresh Complaint:The judgment delves into the aspect of filing a fresh complaint under Section 138 of the Negotiable Instrument Act. The trial Court had rejected the complaint as prematurely filed, citing that the cause of action had not yet arisen. The applicant/appellant did not challenge this aspect but contended that the trial Court failed to provide the opportunity to file a fresh complaint, as allowed by the Supreme Court in 'Yogendra Pratap Singh.' The Supreme Court's judgment highlighted the provision under Section 142(b) of the Act, allowing for the filing of a fresh complaint within one month from the date of decision in the criminal case. The High Court, considering the legal position and the failure of the trial Court to grant the opportunity for a fresh complaint, partly allowed the appeal. The applicant/appellant was permitted to file a fresh complaint before the trial Court concerning the same cause of action, with the trial Court obligated to provide the benefit of Section 142(b) of the Negotiable Instrument Act.In conclusion, the judgment addresses the issues of granting leave to appeal and filing a fresh complaint under Section 138 of the Negotiable Instrument Act. It emphasizes the importance of following legal precedents set by the Supreme Court and ensuring that parties are provided with the opportunity to pursue their legal remedies.