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Once Intention Of Drawer To Not Make Payment Is Clear, Drawee Need Not Wait For 15 Days To File Complaint

In Ravi Dixit vs State of U.P., appeal was filed before the Allahabad High Court against the summon issued by the magistrate against complaint under Section 138 of the Negotiable Instruments Act. The appellant challenged the summon on basis of having replied to the notice sent by the complainant and the fact that the complainant did not wait for the mandatory period of 15 days from the date of said reply before filling complaint under Section 138.

The High Court observed that the appellant had clearly said in the reply that he would not be paying the money claimed by the complainant. So the question was whether once the intention of the party is clear that he does not wish to make payment, should the complainant wait for 15 days.

The High Court dismissing the appeal with cost held that the provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment. In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court. Proviso to Section 138 of the Act, 1881 does not constitute ingredients of offence punishable under Section 138. Proviso to Section 138 simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for lodgement of complaint. but as decided in Dashrath Rupsingh Rathod Vs. State of Maharashtra, (2014) 9 SCC 129, the offence is completed the moment the cheque is dishonoured.

In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no'.

The only object of proviso (c) to Section 138 of the Act, 1881 is to avoid unnecessary hardship if the drawer wants to make payment. Hence, this Court does not find any reason to interfere with the well reasoned summoning order passed by the learned Magistrate.

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