The Allahabad High Court has set aside a summoning order in a cheque bounce case, holding that a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed before the expiry of the 15-day period after notice, is not legally maintainable. Justice Sandeep Jain allowed the accused’s application under Section 482 CrPC but gave the complainant liberty to file a fresh complaint.
Background of the Cheque Bounce Case
According to the complaint, Amit Kumar Tripathi advanced an interest-free loan of ₹2.5 lakh to Arun Gautam in July 2014 for his business, on the assurance that it would be repaid within three months.
When repayment was demanded, Gautam allegedly issued a cheque of ₹1 lakh dated 15.10.2014 but asked that it not be presented, and it became invalid. He later issued a cheque of ₹1.5 lakh dated 23.02.2016, which was returned unpaid three times, on 26.02.2016, 11.03.2016 and 06.04.2016, with the endorsement “kindly contact drawer”.
The complainant sent a legal notice by registered post on 20.04.2016, which the accused allegedly refused to accept. The complaint was filed on 02.05.2016, and the Additional Chief Metropolitan Magistrate, Kanpur Nagar, summoned the accused on 10.05.2016.
Arguments Before the High Court
Advocate P.K. Singh, appearing for the accused, argued that even if the notice was refused on 20.04.2016 itself, the 15-day period under Section 138(c) would have expired only on 05.05.2016. The complaint filed on 02.05.2016 was therefore premature and not maintainable. He relied on the Supreme Court’s rulings in Yogendra Pratap Singh vs. Savitri Pandey and Gajanand Burange vs. Laxmi Chand Goyal.
Advocate Chheda Lal Verma, appearing for the complainant, argued that nearly ten years had passed since the complaint was filed and the trial had still not concluded. Quashing the proceedings at this stage and leaving the complainant to file afresh would not be appropriate, he submitted.
Allahabad High Court on Premature Section 138 Complaint
The Court relied on the three-Judge Bench ruling in Yogendra Pratap Singh, where the Supreme Court held:
“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 the law.”
The Court noted that the Supreme Court had followed this precedent again in Gajanand Burange, and that the remedy in such cases is to file a fresh complaint by relying on the proviso to Section 142(b) of the Act.
Applying this to the case, Justice Jain observed that even if the notice was presumed refused on 20.04.2016, “the complaint could only have been filed after the expiry of 15 days from the refusal i.e. on 06.5.2016 or thereafter”. Since it was admittedly filed on 02.05.2016, it was premature and not legally maintainable.
The Court held: “the trial court has certainly erred in taking cognizance on the complaint by impugned order dated 10.5.2016, which is unsustainable and is liable to be set aside.”
Outcome
The High Court allowed the application and set aside the summoning order dated 10.05.2016.
The complainant has been given liberty to file a fresh complaint and to seek the benefit of the proviso to Section 142(b) by satisfying the trial court of sufficient cause for the delay. If the fresh complaint is filed within two months, the trial court has been directed to decide it within six months.
Case Title: Arun Gautam vs. State of UP and Another
Case No.: Application U/S 482 No. 39950 of 2017
Bench: Justice Sandeep Jain
Date: 02.11.2026
