No “45‑Day Wait” Under Section 138 NI Act: Delhi High Court Clarifies Limitation, Upholds Concurrent Civil–Criminal Remedies, and Bars Mini‑Trials under Section 528 BNSS

Introduction

In Smt. Rama Oberoi v. State NCT of Delhi and Anr (2025 DHC 7683), the Delhi High Court dismissed, at the very threshold and with costs, a petition seeking quashing of a summoning order issued under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The petitioner had invoked the High Court’s inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—the successor to Section 482 of the Code of Criminal Procedure (CrPC)—to challenge an order dated 12.06.2025 by a trial Magistrate summoning her for cheque dishonour.

Three principal contentions were raised: (i) the complaint was “premature” because, according to the petitioner, it could be filed only after “45 days” from the statutory demand notice; (ii) the cheques did not bear the petitioner’s signatures; and (iii) since a civil recovery suit on the same transaction had already been filed by the complainant, the criminal complaint was not maintainable. Justice Girish Kathpalia rejected all three contentions, declined to even issue notice, and imposed costs of Rs. 10,000 to be deposited with the Delhi High Court Legal Services Committee (DHCLSC).

Summary of the Judgment

The Court held that there is no consolidated “45-day” waiting period under Section 138 NI Act before filing a complaint. Instead, the statutory scheme is:
- 15 days from receipt of the demand notice for the drawer to pay (proviso (c) to Section 138); and
- One month thereafter to file the complaint (Section 142(1)(b) NI Act) from the date the cause of action arises.
Applying the dates in the record (notice served on 22.09.2022), the 15-day window expired on 07.10.2022; the one-month period to file the complaint ended on 06.11.2022; and the complaint filed on 29.10.2022 was well within time.
The pendency of a civil recovery suit does not bar or render incompetent a prosecution under Section 138 NI Act. Civil and criminal remedies serve different purposes and may proceed concurrently.
The argument that the cheques were not signed by the petitioner raises a disputed question of fact not amenable to adjudication at the quashing stage. Whether the signatures are genuine is a matter for trial. The High Court, in a petition under Section 528 BNSS, cannot conduct a “mini-trial.”
The petition was found “completely frivolous” and was dismissed with costs of Rs. 10,000 to DHCLSC. A copy of the order was directed to be sent to the trial court for ensuring compliance regarding costs.

Analysis

Precedents Cited

The order is concise and does not expressly cite case law. Nevertheless, its reasoning tracks well-settled Supreme Court jurisprudence on each issue addressed:

Premature complaints and computation of limitation: The Court’s approach accords with the principle that the cause of action under proviso (c) to Section 138 arises only after the expiry of 15 days from the date of receipt of the statutory demand notice, and the complaint must then be filed within “one month” as per Section 142(1)(b) NI Act. The Supreme Court has clarified the impermissibility of complaints filed before the cause of action arises (for example, Yogendra Pratap Singh v. Savitri Pandey).
Parallel civil and criminal proceedings: The Supreme Court has repeatedly held that the availability or invocation of civil remedies does not bar criminal prosecution where the allegations disclose a criminal offence (see, illustratively, Trisuns Chemical Industry v. Rajesh Agarwal; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.; Indian Oil Corporation v. NEPC India Ltd.). Section 138 prosecutions, which enforce a penal consequence for cheque dishonour, are no exception.
Scope of quashing and “no mini-trial”: The Court’s refusal to test the genuineness of signatures at the threshold aligns with the settled limits on inherent jurisdiction (now Section 528 BNSS), under which disputed factual issues are ordinarily left to trial unless the case falls within narrow categories warranting quashing (cf. State of Haryana v. Bhajan Lal; HMT Watches Ltd. v. M.A. Abida).
Presumptions and signature disputes: While not directly engaged at the quashing stage here, the Supreme Court has underscored the strong presumption under Sections 118 and 139 NI Act regarding consideration and legally enforceable debt once execution is shown (Rangappa v. Sri Mohan) and has clarified that even a blank but signed cheque can attract the presumption (Bir Singh v. Mukesh Kumar). Whether a cheque is signed by the accused is a core evidentiary matter for trial.

Note: Although the High Court’s order refers to “Section 141(1)(b)” in the context of limitation, that appears to be a typographical slip. The provision governing limitation for filing the complaint is Section 142(1)(b) NI Act.

Legal Reasoning

No consolidated “45-day” wait:
The petitioner’s principal submission—that a complaint under Section 138 can be filed only after 45 days of the statutory notice—was rejected as legally untenable. The Court explained that the time periods under the NI Act are structured, not cumulative:
- Proviso (c) to Section 138 grants the drawer a 15-day grace period, from the date of receipt of the statutory notice, to pay the cheque amount and thereby avert criminal liability.
- Section 142(1)(b) confers a one-month window to file the complaint after the cause of action arises (i.e., upon expiry of the 15th day without payment).
On the facts: notice was served on 22.09.2022; the 15-day period expired on 07.10.2022; the “one month” to file the complaint ended on 06.11.2022; and the complaint filed on 29.10.2022 was neither premature nor time-barred. The Court further noted that “one month” is to be understood as a calendar month, in line with the conventional approach under the General Clauses Act, with computation principles that exclude the first day and include the last day—hence the 06.11.2022 outer limit.
Concurrent civil and criminal remedies are permissible:
The Court reiterated that it is “trite” law that a creditor can simultaneously pursue a civil suit to recover money and a criminal complaint for cheque dishonour. The two proceedings serve distinct purposes: the civil action seeks a decree for the amount due, while the criminal action seeks penal consequences for the statutory wrong of dishonour coupled with non-payment post-notice. There is no legal bar on proceeding with both.
Signature dispute is a triable fact; no mini-trial under Section 528 BNSS:
The petitioner asserted that the cheques did not bear her signatures. Observing that the cheques carry her printed name as drawer/signatory, the Court held that the genuineness of the signatures is a matter of evidence to be determined at trial. At the quashing stage, the High Court cannot embark on evidentiary evaluation or conduct a “mini-trial.” This respects the settled restraint that inherent powers are to be used sparingly and not as a substitute for trial.
Costs for frivolous challenge:
Finding the petition “completely frivolous,” the Court dismissed it with costs of Rs. 10,000, to be deposited with DHCLSC within two weeks, signaling an institutional intent to deter meritless challenges that delay NI Act prosecutions.

Impact

Clarifies the “45-day” misconception: The decision definitively rejects the notion of a single, consolidated 45-day waiting period post-notice. Practitioners must now align filings with the correct two-step timeline—15 days for payment and “one month” thereafter to file—thereby reducing technical objections and procedural missteps.
Streamlines threshold scrutiny in quashing petitions: By reaffirming that signature disputes are trial issues, the judgment curtails attempts to derail prosecutions through factual contests at the Section 528 BNSS stage.
Endorses simultaneous recourse: Reiterating that civil recovery proceedings do not preclude Section 138 prosecution reinforces the deterrent purpose of the NI Act and discourages debtors from using pending civil suits as shields against criminal accountability.
Costs for frivolity: The imposition of costs may deter speculative or dilatory quashing petitions, aiding the legislative objective of expeditious cheque dishonour trials.
BNSS transition in practice: The order demonstrates continuity of the CrPC Section 482 jurisprudence under the BNSS’s Section 528, providing interpretive stability during the procedural transition.

Complex Concepts Simplified

Section 138 NI Act: Criminalizes dishonour of a cheque for insufficiency of funds if the drawer fails to pay the amount within 15 days of receiving a written demand (statutory notice) from the payee.
Statutory notice and cause of action: After a cheque bounces, the payee must send a demand notice within the statutory time. The drawer then has 15 days to pay. If payment is not made by the 15th day, the “cause of action” to prosecute arises on the next day.
Limitation to file complaint (Section 142(1)(b) NI Act): The complaint must be filed within one month from the date the cause of action arises (i.e., immediately after the 15-day post-notice period expires). “One month” is treated as a calendar month; computation typically excludes the first day and includes the last day.
“45 days” myth: There is no requirement to wait a flat 45 days after notice. The law prescribes 15 days for the drawer to pay; the subsequent “one month” is the window to file, not a mandatory waiting period.
Simultaneous civil and criminal remedies: A payee may sue for recovery (civil) and also prosecute under Section 138 (criminal). The two processes aim at different outcomes—money decree versus penal consequences—and can proceed in parallel.
Summoning order: A preliminary order by the Magistrate finding sufficient grounds to proceed against the accused. It is issued at a low threshold based on the complaint and supporting documents.
Quashing under Section 528 BNSS (formerly Section 482 CrPC): The High Court’s inherent power to prevent abuse of process and secure the ends of justice. It is used sparingly and does not permit weighing of evidence or deciding disputed facts at the threshold (“no mini-trial”).
DHCLSC: Delhi High Court Legal Services Committee—an institutional body that receives costs in appropriate cases, often to support legal aid.

Conclusion

The Delhi High Court’s decision in Smt. Rama Oberoi decisively clarifies a recurring procedural confusion in NI Act prosecutions: there is no consolidated 45-day waiting period post-notice. Instead, the statute contemplates a 15-day grace period for payment and, if unpaid, a one-month limitation window to file the complaint from the date the cause of action arises. The Court has also reaffirmed two core principles that structure cheque dishonour litigation: civil recovery actions do not bar criminal prosecution, and contested factual questions—such as the genuineness of signatures—are for trial, not for adjudication in quashing proceedings under Section 528 BNSS. By dismissing the petition at the threshold and imposing costs, the Court sends a clear message against meritless challenges designed to stall Section 138 trials, while providing much-needed procedural clarity that will aid both complainants and accused in navigating the NI Act’s timelines.