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of <h1>Fresh complaint under Section 138 allowed after premature filing doesn't bar subsequent prosecution for dishonoured cheque</h1> Jharkhand HC dismissed a petition challenging the filing of a fresh complaint under Section 138 of the Negotiable Instruments Act after a premature ... Dishonour of Cheque - whether filing of a premature complaint debars, filing of a fresh complaint when the time becomes ripe to file the complaint? - HELD THAT:- The answer to the question is no more res integra as the Hon’ble Supreme Court of India in the case of YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY & ANR. [2014 (9) TMI 1129 - SUPREME COURT] which was also relied upon by the Hon’ble Supreme Court of India in the case of Gajanad Burange vs. Laxmi Chand Goyal [2022 (9) TMI 213 - SC ORDER] wherein the Hon’ble Supreme Court has categorically observed that in case of a premature complaint in a case involving the offence punishable under section 138 of the Negotiable Instruments Act, 1881 in case of a premature complaint, complainant was given the liberty to file a fresh complaint. In the case of Gajanad Burange vs. Laxmi Chand Goyal, the Hon’ble Supreme Court of India even gave liberty to the complainant to approach the court concerned to condone the delay in filing the fresh complaint, as per the proviso of section 142 of the Negotiable Instruments Act, 1881. It is a settled principle of law that the offence punishable under section 138 of the Negotiable Instruments Act, 1881 stands on a different footing from other penal offences. There is no specific provision debarring filing of a second complaint in respect of the same cheque upon its being dishonoured while presented for the second time - This Court is of the considered view that at this stage it will not be proper to quash the entire proceedings of Complaint Case No.568 of 2021 when the learned Chief Judicial Magistrate, Seraikella-Kharsawan has not committed any illegality in taking cognizance of that case, merely because the premature complaint being Complaint Case No. 451 of 2021, was prior to Complaint Case No.568 of 2021. Thus, this Court is of the considered view that filing of a premature complaint in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 does not debar, filing of a fresh complaint; when the time becomes ripe to file such complaint. This Court do not find any merit in this case - petition dismissed. Issues:The issues involved in the judgment are the quashing of a Complaint Case and criminal proceedings u/s 138 of the Negotiable Instrument Act, 1881 based on a petition filed u/s 482 of the Code of Criminal Procedure.Summary:Issue 1: Quashing of Complaint Case and Criminal Proceedings:The petitioner filed a Criminal Miscellaneous Petition seeking to quash Complaint Case No.568 of 2021, which involves an offence u/s 138 of the Negotiable Instrument Act, 1881. The petitioner's defense included the claim that the cheque was issued under duress and that the amount had already been paid. However, the Court held that these disputed defenses are not grounds to quash the proceedings. The Court also considered the premature filing of a previous complaint (Case No.451 of 2021) by the complainant. The Court noted that for offences u/s 138, the law stands differently, and the premature filing did not prohibit a fresh complaint when the time was appropriate. It was emphasized that the offense u/s 138 stands on a different footing, allowing for the filing of a second complaint upon dishonor of the cheque. The Court found no illegality in the actions of the Chief Judicial Magistrate and dismissed the petition, stating that filing a premature complaint does not debar the filing of a fresh complaint when the time is right.Decision:The Court dismissed the Criminal Miscellaneous Petition, finding no merit in the petitioner's arguments and upholding the continuation of Complaint Case No.568 of 2021 involving an offence u/s 138 of the Negotiable Instrument Act, 1881.
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