TMI Blog2014 (9) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the above two questions for consideration by a three- Judge Bench of this Court. 3. This is how the matter has been placed before us. 4. It is not necessary to narrate the facts in detail. Suffice it to refer to factual matrix noted in the referral order which is as follows: The appellant filed a complaint under Section 138 of the Negotiable Instruments Act against respondent No.1 Smt. Savitri Pandey in the Court of Additional Civil Judge (J.D.)/Magistrate, Sonbhadra in the State of Uttar Pradesh. The respondent's case was that four cheques issued by the accused-respondent in his favour were dishonoured, when presented for encashment. A notice calling upon the respondent-drawer of the cheque to pay the amount covered by the cheques was issued and duly served upon the respondent as required under Section 138 (c) of The Negotiable Instruments Act, 1881. No payment was, however, made by the accused till 7th October, 2008 when a complaint under Section 138 of the Act aforementioned was filed before the Magistrate. Significantly enough the notice in question having been served on 23rd September, 2008, the complaint presented on 7th October, 2008 was filed before expiry of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 6. Section 142 deals with cognizance of offences. The said provision, after amendment by Act 55 of 2002, is as under: 142. Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and Anr.; [1993 Cri.L.J. 680]. The Division Bench of the Bombay High Court held that as the complaint was presented within the period of 15 days of the service of notice effected on the accused, the complaint was not maintainable for commission of offence under Section 138 of the NI Act as no offence can be said to have been committed on the date of lodgment of the complaint. Reading Section 138(c) and Section 142 (b) together, the Division Bench of the Bombay High Court held that no offence can be said to have been committed until and unless the period of 15 days as prescribed under clause 138(c) has in fact elapsed. 11. The above view taken by the Division Bench of the Bombay High Court is echoed by the High Courts of Punjab and Haryana Ashok Verma v. Ritesh Agro Pvt. Ltd. and Anr.; [(1995) 1 Bank CLR 103], Andhra Pradesh N. Venkata Sivaram Prasad v. M/s Rajeswari Constructions; [1996 Cri. L.J. 3409], Karnataka Ashok Hegde v. Jathin v. Attawan; [1997 Cril. L.J. 3691], Orissa Sri Niranjan Sahoo v. M/s Utkal Sanitary, BBSR; [1998 (3) Crimes 188] and Jammu and Kashmir M/s Harpreet Hosiery Rehari v. Nitu Mahajan; [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138. The Division Bench took into consideration the provisions contained in Section 138 and Section 142 of the NI Act and so also Section 2(d), Section 2(n) and Section 190 of the Code and held that until and unless the criteria laid down in Section 138 are complied with, it would not constitute an offence. The Division Bench of the Andhra Pradesh High Court held: Proviso (c) clearly stipulates that the Section does not apply unless the drawer of the cheques fails to make the payment to the payee within 15 days of the receipt of the said notice. Thus, the payee has been given liberty to make the payment within 15 days of the receipt of the notice even though the cheque was returned by the Bank unpaid. Hence, the reading of Proviso (c) to Section 138 clearly denotes that it would not be an offence if the drawer pays the amount within a period of 15 days as a specified therein. In such circumstances, there could not have been any complaint alleging the violation of Section 138. The pre-offence period granted to the payee should be construed strictly, otherwise the very purpose of Section 138(c) of the Negotiable Instruments Act would be frustrated. The complainant should be able ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the offence can only come to the knowledge of the Court by way of complaint in writing. Apart from the original complaint which does not disclose any offence, there is no further complaint. As rightly pointed out by the learned Additional Public Prosecutor, when the special law specifies not only the ingredients of the offence but also the procedure, the requirements have to be strictly complied with. Hence, we are of the opinion that the Court cannot proceed with the case even after the lapse of time as prescribed by Section 138(c) of Negotiate Instruments Act. It was, thus, held by the Andhra Pradesh High Court that the Magistrate should not have acted upon a premature complaint which was not a complaint at all in the eye of law. 15. In Ashok Hegde6, the single Judge of the Karnataka High Court while dealing with the contention raised by the petitioner therein that the complainant has not given 15 days time to the petitioner as contemplated under Section 138(b) of the NI Act and the complaint was premature and should not have been entertained, the single Judge held, .. from the above, it is clear that he received the notice back on 21.09.1989. Even accepting that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epay the amount in spite of receipt of notice from the complainant and hence the accused is liable for punishment under Section 138 of the NI Act. As noticed earlier, the appeal filed by the respondent was dismissed on 19- 4-1997. The High Court found that as the notice intimating the dishonourment of cheque was served upon the accused on 26-10-1994, the appellant-complainant could not file the complaint unless the expiry of 15 days period. It was found on facts that the complaint filed on 8-11-1994 was returned after finding some defect in it. However, when refiled, the Court took the cognizance on 17-11-1994. The High Court held that the original complaint having been filed on 8-11-1994 was premature and liable to be dismissed. 19. This Court in Narsingh Das Tapadia1 considered the provisions contained in clause (c) of the proviso to Section 138 and Section 142 of the NI Act and also considered the expression taking cognizance of an offence and held that mere presentation of the complaint on 08.11.1994 when it was returned to the complainant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the Magistrate taking cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint under Section 138 of the NI Act against the accused as it was found to be premature since 15 days from the date of receipt of the notice by the accused had not elapsed. The Sessions Judge set aside the order of the Chief Judicial Magistrate dealing with criminal revision filed by the accused. Madhya Pradesh High Court followed the decision of this Court in Narsingh Das Tapadia1 and held that the order of the Chief Judicial Magistrate in dismissing the complaint was wrong and that order was rightly set aside by the revisional court. 24. The Gauhati High Court in Yunus Khan v. Mazhar Khan; [2004 (1) GLT 652] relying upon Narsingh Das Tapadia1 took the view that mere presentation of a complaint in the Court of Judicial Magistrate does not mean that Magistrate has taken cognizance of the same. Though the complaint was filed under Section 138 of the NI Act in the Court of Judicial Magistrate when only 13 days had elapsed from the date of receipt of the notice and the requisite period of 15 days was not yet completed but when the Magistrate took cognizance, 15 days had elapsed from the date of the receipt of the notice and thus the complaint already stood validly instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of statutory notice, the concerned court should have waited and allowed the complainant to establish its case or cognizance should have been taken after the expiry of the stipulated period instead of dismissing the complaint outright as premature. 27. A single Judge of the Madras High Court, following Narsingh Das Tapadia1 held that though the complaint was preferred three days short of the time to be availed by the accused to settle the dues but since the Magistrate had taken cognizance of the complaint presented by the complainant after the 15 days time granted under the statutory notice to settle the amount due to complainant, the complaint cannot be quashed on the ground that it was filed prematurely. 28. In S. Janak Singh v. Pritpal Singh; [2007 (2) JKJ 91], the Jammu and Kashmir High Court took the view with regard to presentation of complaint before the accrual of cause of action that though the complaint under Section 138 of the NI Act having been filed before the accrual of cause of action, the same could not be legally entertained by the trial court. Relying upon Narsingh Das Tapadia1, it was held that if the complaint was found to be premature, it can await matur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of notice was premature and such complaint could not be treated as complaint in the eye of law and criminal proceedings initiated are liable to be quashed. This is seen from the view of the Calcutta High Court in Sandip Guha v. Saktipada Ghosh and Anr.; [2008 (3) CHN 214] and the judgment of the Himachal Pradesh High Court in Rattan Chand v. Kanwar Ram Kripal and Anr.; [2010 Cri. L.J. 706]]. 31. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this Section is also a proviso which has three clauses, viz., (a), (b) and (c). The offence under Section 138 is made effective only on fulfillment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Consultancy2 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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