Payee need not wait for 15 days to file complaint under S. 138 of NI Act if intention of drawer to not make payment is clear: Allahabad HC

The Allahabad High Court has ruled that if the intention of drawer of cheque to not make payment is clear, the payee need not wait for completion of the mandatory 15-day notice period to file complaint under Section 138 of the Negotiable Instruments Act (Ravi Dixit v State of UP and Another). .The 15-day notice period provided to the drawer of a cheque under proviso (c) of Section 138 of the Negotiable Instruments Act to make payment is to enable bona fide drawer cheque an opportunity to make payment, the court said. .On this ground, a single Bench of Justice Kaushal Jayendra Thaker The Allahabad High Court dismissed a petition with cost of Rs 15,000 wherein a summoning order issued in a complaint filed under Section 138 of Negotiable Instrument Act, 1881 was challenged..The court added that since the petitioner was aware that summons had already been issued against him, he could choose to appear before the Court below on or before October 15 failing which the Court was free to take steps as provided by law..The petitioner had argued that as per Section 138, he could not be asked to answer the summons as he had already filed a reply and a complaint under the said provision could have been filed only after 15 days of his reply and it was filed before the said date..It was further submitted that he was falsely implicated due to enmity and financial dispute with the complainant and that cheques were dishonoured as the petitioner himself had directed stoppage of payment..Also, the petitioner alleged that he was not in know how of the summons issued..The Court thus questioned that if once the intention of the party is clear that he does not wish to make payment, should the complainant wait for 15 days is the question..In this regard it was observed.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.Allahabad High Court.In the instant case, the court said 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.."The Parliament has granted just and proper time to give to the drawer the opportunity to pay the amount before he could be prosecuted. The offence is completed the moment the cheque is dishonoured," the court added..Moreover, by replying to the notice the intention of the drawer that he did not wish to make the payment was clear, the court concluded..Clarifying that 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 and noting that for a period of one year the petitioner chose not to appear before the Magistrate, the court found no reason to interfere with the well reasoned summoning order passed by the Magistrate..[Read order]