Navin Mishra Vs Sanjay Patel

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2025:CGHC:44844

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Digitally signed by AVINASH AVINASH SHARMA SHARMA Date: 2025.09.03 18:47:41 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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CRMP No. 114 of 2020

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1 - Navin Mishra S/o Ram Prasad Mishra Aged About 30 Years R/o Maharaja Builders Dushehra Maidan, Balodabazar, District - Balodabazar, Bhatapara Chhattisgarh. (Accused).

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... Petitioner(s)

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versus

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1 - Sanjay Patel S/o Nanu Bhai Patel Aged About 42 Years R/o SakinGaurav Hotel, Ambedkar Chowk, Balodabazar, District - BalodabazarBhatapara Chhattisgarh. (Complainant).

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... Respondent(s)

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For Petitioner(s) : Ms. Ruchi Nagar appears on behalf of Ms. Supriya Upasane, Advocates.

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For Respondent(s) : Shri Sahil Sahu appears on behalf of Shri Rajendra Patel, Advocates.

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Hon'ble Shri Deepak Kumar Tiwari, J Order on Board

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03/09/2025

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This Petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed against the order dated 23.12.2019 passed by the Third Additional Sessions Judge, Balodabazar District Balodabazar (C.G.) in Criminal Revision No.29/2019 which in turn, arose out of the order dated 15.04.2019 passed by the Judicial Magistrate First Class, Balodabazar C.G. in Complaint case No.107/18.

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Initially an objection has been raised by the petitioner/accused that since the complaint case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter “the Act, 1881”) has been filed before the expiry of 15 days from the date of notice served upon the petitioner, therefore, the same deserves to be dismissed being premature. However, the said objection was not allowed by both the courts below. Hence, by way of this petition, the petitioner prays for quashing of the aforesaid order dated 15.04.2019 as well as the subsequent order dated 23.12.2019 on the ground that the complaint case filed by respondent/complainant is premature.

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Learned counsel for the respondent/complainant fairly admits that the complaint is premature as the notice for dishonor was given on 05.10.2018 and a premature complaint has been filed on 12.10.2018, before expiry of 15 days.

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The law is well settled by the 3 Judge Bench of the Hon’ble Supreme Court in the matter of Gajanand Burange Vs. Laxmi Chand Goyal¹ wherein para-35 of the judgment in the matter of Yogendra Pratap Singh Vs. Savitri Pandey and Another² was referred, which reads as under:-

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“ 35 . Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines ‘complaint’. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an

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1 2022 SCC OnLine SC 1711

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2 (2014) 10 SCC 713

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offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.”

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Learned counsel for the respondent/complainant would further submit that a liberty may be reserved in favour of the respondent/complainant to present/file a fresh complaint, and the respondent/complainant may be permitted to explain and satisfy the Court as to the sufficient cause as per the proviso to Section 142 (b) of the Act, 1881.

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Counsel for the petitioner/accused would support the submission made by counsel for the respondent/complainant.

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Having considered the submissions and particularly considering the undisputed fact that the complaint was filed prematurely, the impugned orders rejecting the objection of the accused passed by both the courts below are not sustainable and the same are hereby set aside.

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Considering the entire fact situation of the case, it would be appropriate to grant liberty to the respondent/complainant to institute a fresh complaint within a period of one month from the date of receipt of a copy of this order. Ordered accordingly.

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Accordingly, this Petition stands disposed of.

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10.Let a copy of this order be sent to the concerned trial Court forthwith for necessary information.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Avinash

Navin Mishra v. Sanjay Patel

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Navin Mishra v. Sanjay Patel

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