TMI Blog2000 (9) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... and sentence passed by the trial court. However, in revision, the High Court set aside the judgment of the trial court as well as the appellate court holding that the complaint filed against the respondent was premature. The facts of the case are that the respondent borrowed a sum of ₹ 2,30,000 from the appellant and issued a post-dated cheque in his favour. When the cheque was presented for demand on 3-10-1994, the same was dishonoured by the bank on 6-10-1994 due to insufficient funds . The appellant demanded the accused to repay the amount vide his telegrams sent on 7-10-1994 and 17-10-1994. A notice was also issued to the respondent on 19-10-1994 demanding to repay the amount. Despite receipt of the notice on 26-10-1994 the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 138; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138. Clause (c) of proviso to Section 138 which makes the dishonour of a cheque an offence provides that nothing contained in the section shall apply unless (c) the drawer of such cheque fails to make the payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence (Narayandas Bhagwandas Madhavdas v. State of W.B. (AIR 1959 SC 1118 1959 Cri LJ 1368) and Gopal Das Sindhi v. State of Assam (AIR 1961 SC 986 (1961) 2 Cri LJ 39). This Court in Nirmaljit Singh Hoon v. State of W.B. ((1973) 3 SCC 753 1973 SCC (Cri) 521) observed 22. Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy ((1976) 3 SCC 252 1976 SCC (Cri) 380 AIR 1976 SC 1672) dealt with the issue and observed What is meant by `taking cognizance of an offence' by a Magistrate within the contemplation of Section 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld thus The date of filing i.e. 8-11-1994 in this case is crucial. The return of the complaint filed by the respondent to comply with some objections and subsequent filing on 17-11-1994 in this case does not have any effect. Therefore, the complaint is premature and is liable to be dismissed. As the impugned judgment is based upon wrong assumptions of law and facts, the same is liable to be set aside. In view of what has been stated hereinabove, this appeal is allowed by setting aside the impugned order, with the result that the conviction of the respondent under Section 138 of the Act is upheld. So far as awarding of sentence is concerned, we are inclined to take a lenient view in the light of the subsequent developments in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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