2022 (8) TMI 414

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....Shri Yogendra Kumar Tiwari, learned counsel for the applicant/appellant, Shri Shailredra Misra, learned counsel appearing for opposite party no.2 as well as learned A.G.A. for the State and perused the record. Learned counsel for the applicant/appellant submits that the instant leave to appeal has been filed on the limited question of law as the trial Court while dismissing the complaint filed by the applicant/appellant under Section 138 Negotiable Instrument Act 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. To buttress his point, it is vehemently submitted that the judgment of the trial Court is based on the law ....

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....ly. 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. Learned counsel for the appellant has not challenged this part of the judgment of the trial Court rather he feels aggrieved by the fact that while dismissing the complaint on the ground that the same has been filed prematurely, the trial Court has not given any opportunity to the applicant-appellant to file the complaint afresh as provided by the Hon'ble Supreme Court in Yogendra Pratap Singh (supra). Perusal of the judgment of the Hon'ble Supreme Court passed....

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.... condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142 (b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is a....