# Ankur Asthana v. State of U.P. & Anr

- **Citation:** (2026) 1 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-29
- **Case number:** Application U/S 482. No. 692 of 2023
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankur-asthana-v-state-of-u-p-anr-53817
- **Pages:** 6

## Text

106 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In light of the same, we quash and set aside the order dated April 24, 2025 and direct
the Tribunal to come to an appropriate finding with regard to the issues raised in the present
judgment.

16. In light of the aforesaid, all the Custom Appeals are allowed and the Tribunal is directed
to de novo hear the matter expeditiously, preferably within a period of three months from the date
of receipt of certified copy of this judgment.
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(2026) 1 ILRA 106
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.01.2026

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482. No. 692 of 2023

Ankur Asthana ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for consideration
Matter pertains to maintainability of complaint u/s 138 /142 NI Act filed before the expiry of 15 days from the
date of receipt of notice.

Headnotes
Negotiable Instruments Act, 1881-sec 138; 142(b)-Application u/s 482 Cr.P.C.-challenging
summoning order-Complaint filed before the expiry of 15 days from the date of receipt of notice -
notice issued under clause (c) of the proviso to Section 138 - not maintainable-the complainant
cannot be permitted to present the very same complaint at any later stage-remedy is only to file a
fresh complaint-if the same could not be filed within the time prescribed u/s 142(b)-his recourse is
to seek the benefit of the proviso- satisfying the court of sufficient cause. Application
rejected.(E-9)

Case Law Cited
Yogendra Pratap Singh v. Savitri Pandey, reported in AIR 2015 SC 157, 2014 AIR SCW 5751

List of Acts
Negotiable Instruments Act, 1881

List of Keywords
Summoning order; fresh complaint; delay in filing the complaint; Section 142 of the NI Act

Appearances of parties
Counsel for Applicant(s) : Anand Mani Tripathi, Anurag Tripathi Counsel for Opposite Party(s) : G.A., Anil
Kumar Pandey, Ramakar Shukla

(Delivered by Hon'ble Brij Raj Singh, J.)
1 All. Ankur Asthana Vs. State of U.P. & Anr.
107

1. Since the common question of facts and law are involved in both the applications, therefore,
with the consent of the parties, they are being heard and decided by a common judgement.

2. In APPLICATION U/s 482 No. 692 of 2023, the applicant has sought following main
relief(s) :-

"to quash the orders dated 04.01.2023 and 17.08.2022 passed by learned Additional
Civil Judge Junior Division C-No.26/ Additional Judicial Magistrate - Sultanpur, in the interest of
justice and the Hon'ble Court further be pleased to restrain the lower Court 23 below from
proceeding any further in pursuance of aforesaid Criminal Case No. 13 of 2022, Under Section
138 N.I. Act, Police Station-Kotwali Nagar, District-Sultanpur and also quash the entire
proceeding of the above said case, in the interest of justice."

3. In APPLICATION U/s 482 No. 1829 of 2022, the applicant has sought following main
relief(s) :-

"to quash the order dated 09.02.2022 in Criminal Case No. 390/2022 "M/s Kashish
Enterprises Vs. Ankur Asthana" Under Section-138 N.I. Act, Police Station- Kotwali Nagar,
District Sultanpur passed by the learned Court below i.e. Additional Civil Judge (Lower Division)
Avar Khand/Judicial Magistrate Room No. 31 District Sultanpur and further proceedings of the
case passed in pursuance thereof.

It is further prayed that this Hon'ble Court may kindly be pleased to quash the entire
proceeding of Criminal Complaint No. 390/2022 "M/s Kashish Enterprises Vs. Ankur Asthana"
Under Section-138 N.I. Act, Police Station- Kotwali Nagar, District Sultanpur, in the interest of
justice."

4. Before proceeding, it would be apt to indicate that the applicant had challenged the order
dated 09.02.2022 in APPLICATION U/s 482 No. 1829 of 2022 whereby the complaint was
directed to be registered and notice was issued to the applicant and during the pendency of the said
application, the applicant has also filed second APPLICATION U/s 482 No. 692 of 2023.

5. Facts of the case, as stated by learned counsel for the applicant, are that the the opposite
party no.2 preferred Criminal Complaint No. 390 of 2022 (M/s Kashish Enterprises Vs Ankur
Asthana), under Section-138/142 of Negotiable Instruments Act, 1881 (in short 'NI Act'), dated
03.02.2022. From a perusal of the above noted complaint, it transpires that the cheque was
dishonoured due to insufficient fund and the said information was given by the complainant to the
applicant through registered post on 11.09.2020. In the aforesaid complaint, an order dated
06.10.2020 has been passed by the trial Court directing for appearance of the applicant against
which the applicant has filed revision before the learned District and Session Judge, Sultanpur (in
short revisional Court) and the said criminal revision was allowed vide order dated 18.11.2021.
Against the order of revision dated 18.11.2021 passed by the revisional Court quashing the order
dated 06.10.2020, the Opposite Party No. 2 had filed a petition under Section 482 Cr.P.C. before
this Court registered as APPLICATION U/S 482 No. 82 of 2022 and this Court passed an order
dated 25.01.2022 modifying the order dated 18.11.2021 passed in Criminal Revision No. 11 of
2021 passed by Additional District and Session Judge Court No. 1 Sultanpur to the extent that the
108 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner (opposite party no.2 herein) was permitted to file a fresh petition before the learned trial
Court within a period of one month and the same shall be decided strictly in accordance with law.

6. It is also stated that the opposite party no. 2 again filed the complaint on 09.02.2022 in
which the learned trial Court issued notice to the applicant without considering the relevant
provisions and requirement under law as well as mandatory provision of NI Act. The opposite party
no. 2 filed complaint before learned trial Court without fulfilling the mandatory provisions of
Section 138 of NI Act as the fresh notice and its service is required before filing complaint, but
learned trial Court without considering the legal requirement issued summon vide order dated
09.02.2022 in a most illegal and arbitrary manner. The trial Court again proceeded into the matter
during pendency of APPLICATION U/s 482 No. 1829 of 2022 filed by the applicant before this
Court without considering the relevant fact and circumstances of the case with respect to the time
period providing under the Act with respect to new complaint and passed the impugned orders
thereby condoning the delay in filing the application/complaint and summoned the applicant
without considering the whole aspect of the matter in detail which are not sustainable in the eyes of
law in any manner.

7. Shri Anand Mani Tripathi, learned Senior Advocate has specifically pointed out that in the
present matter, fresh legal notice is to be given and unless the cause of action is mentioned, the
complaint is not maintainable. He has submitted that entire procedure of giving notice and other
provision in conformity with Section 138 of NI Act, period prescribed therein for procedure before
filing of the complaint is to be followed. But the opposite party no.2 has not adopted such recourse,
therefore, the entire complaint is liable to be set-side.

8. He has placed reliance on paragraph nos.36 to 40 of the judgment passed by Hon'ble
Supreme Court in Yogendra Pratap Singh v. Savitri Pandey, reported in AIR 2015 SC 157,
2014 AIR SCW 5751.

9. On the other hand, Shri Ramakar Shukla, learned counsel for opposite party no.2 has invited
attention of the Court towards the revisional court order dated 18.11.2021 in Criminal Revision No.
11 of 2021 by which Additional District and Session Judge, Court No.1, Sultanpur has observed
that impugned order dated 06.10.2020 is illegal for the reason that complaint was filed and
registered on 23.09.2020 and the Bank Report denotes the dishonor of the check is dated
03.09.2020 and it it appears that the complaint was filed within fifteen days. Therefore, the
impudent order was not sustainable. The revisional court treated that the complaint is premature
and directed to file another complaint before the competent court. The revisional order was
challenged by the opposite party no.2 by way of APPLICATION U/S 482 No. 82 of 2022 and the
Court modified the revisional order dated 18.11.2022 on 25.01.2022 with observation that the
applicant (opposite party no.2 herein) is permitted to file a fresh petition before the learned trial
Court within a period of one month and the same shall be decided strictly in accordance with law.

10. He has further submitted that in case, fresh complaint is to be filed then certainly this
Court would have to consider period of at least forty-five days, which is the statutory period
envisaged under proviso (b) and (c) of Section 138 of NI Act whereas in the present case, this
Court has specifically said that the petitioner (opposite party no.2 herein) has to file complaint
1 All. Ankur Asthana Vs. State of U.P. & Anr.
109
within one month. The application for condonation of delay filed by opposite party no.2 was
allowed and thereafter, the summon has been issued.

11. He has placed reliance on the judgment passed in Yogendra Pratap Singh (Supra) and
has submitted in paragraph-42 of the judgment, Hon'ble Supreme Court has observed that fresh
complaint may be filed within one month from the date of decision in the criminal case and, in that
event, delay in filing the complaint will be treated as having been condoned under the proviso to
clause (b) of Section 142 of the NI Act.

12. I have heard Sri A.M. Tripathi, learned Senior Advocate, assisted by Sri Anurag Tripathi,
for the applicant as also Sri Ramakar Shukla, Advocate, for opposite party No. 2 and Sri Rao
Narendra Singh, learned A.G.A. for the State and have perused the records.

13. Relevant paragraphs relied by learned counsel for the parties, for the sake of convenience,
are extracted herein-below:-

"36. 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 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 the law.
It is not the question of prematurity of the complaint where it is filed before the 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 the 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.

37. A complaint filed before the expiry of 15 days from the date on which notice has been
served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of
the proviso to Section 138 and upon such complaint which does not disclose the cause of action the
court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to
when and under what circumstances an offence can be said to have been committed, with Section
142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has
arisen, leaves no manner of doubt that no offence can be said to have been committed unless and
until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in
fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is
110 INDIAN LAW REPORTS ALLAHABAD SERIES
not open to the court to take cognizance of such a complaint merely because on the date of
consideration or taking cognizance thereof a period of 15 days from the date on which the notice
has been served on the drawer/accused has elapsed. We have no doubt that all the five essential
features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots &
Alloys Ltd. [Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 :
2000 SCC (Cri) 546 : AIR 2000 SC 954] and which we have approved, must be satisfied for a
complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to
Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for
filing of complaint under Section 138 of the NI Act.

38. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia
[Narsingh Das Tapadia v. Goverdhan Das Partani, (2000) 7 SCC 183 : 2000 SCC (Cri) 1326] and
so also the judgments of various High Courts following Narsingh Das Tapadia [Narsingh Das
Tapadia v. Goverdhan Das Partani, (2000) 7 SCC 183 : 2000 SCC (Cri) 1326] that if the
complaint under Section 138 is filed before the expiry of 15 days from the date on which notice has
been served on the drawer/accused the same is premature and if on the date of taking cognizance a
period of 15 days from the date of service of notice on the drawer/accused has expired, such
complaint was legally maintainable and, hence, the same is overruled.

39. Rather, the view taken by this Court in Sarav Investment & Financial Consultancy
[Sarav Investment & Financial Consultancy (P) Ltd. v. Llyods Register of Shipping Indian Office
Staff Provident Fund, (2007) 14 SCC 753 : (2009) 1 SCC (Cri) 935] wherein this Court held that
service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action
for lodging the complaint and communication to the accused about the fact of dishonouring of the
cheque and calling upon to pay the amount within 15 days was imperative in character, commends
itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the
cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused
cannot be said to have committed any offence until then. We approve the decision of this Court in
Sarav Investment & Financial Consultancy [Sarav Investment & Financial Consultancy (P) Ltd. v.
Llyods Register of Shipping Indian Office Staff Provident Fund, (2007) 14 SCC 753 : (2009) 1 SCC
(Cri) 935] and also the judgments of the High Courts which have taken the view following this
judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of
service of notice could not be treated as a complaint in the eye of the law and criminal proceedings
initiated on such complaint are liable to be quashed.

40. Our answer to Question (i) is, therefore, in the negative.

41. The other question is that if the answer to Question (i) is in the negative, can the
complainant be permitted to present the complaint again notwithstanding the fact that the period of
one month stipulated under Section 142(b) for the filing of such a complaint has expired.

42. Section 142 of the NI Act prescribes the mode and so also the time within which a
complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under
Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to
be made within one month from the date on which the cause of action has arisen under clause (c) of
the proviso to Section 138. The period of one month under Section 142(b) begins from the date on
which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the
complainant satisfies the court that he had sufficient cause for not making a complaint within the
prescribed period of one month, a complaint may be taken by the court after the prescribed period.
Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in
1 All. Lalit Pundir & Ors. Vs. State of U.P. & Anr.
111
due course of the cheque may file a fresh complaint within one month from the date of decision in
the criminal case and, in that event, delay in filing the complaint will be treated as having been
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 answered accordingly.

14. After going through the record and judgment of Hon'ble Supreme Court, paragraph-41
wherein it is provided that the payee or the holder in due course of the cheque may file a fresh
complaint within one month from the date of decision in the criminal case and, in that event, delay
in filing the complaint will be treated as having been condoned under the proviso to clause (b) of
Section 142 of the NI Act.

15. Hon'ble Supreme Court has further observed 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.

16. In the present case also, this Court in Application U/s 482 No. 82 of 2022 has already
given direction to the opposite party no.2 to file a fresh petition within a period of one month. The
argument that fresh legal notice is required is misconceived.

17. Both the application(s) are rejected. No order as to costs.
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(2026) 1 ILRA 111
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2026

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482. No. 22948 of 2019

Lalit Pundir & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration