TMI Blog2012 (4) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned? And, (ii) If answer to question No. 1 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? 3. The questions arise in the following factual backdrop: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as Clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque. 6. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non-obstante clause, It provides that 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 and 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. In terms of Sub-section (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class is competent to try any offence punishable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 138 except upon a complaint, in writing, made by the payee or the holder of the cheque in due course. Such a complaint in order to be treated as a complaint within the contemplation of Section 142 ought to be a valid complaint. This in turn means that such a complaint must have been filed after the complainant had the cause of action to do so under Clause (c) of the proviso to Section 138. A complaint, that is, premature was no complaint in the eyes of law and no cognizance could be taken on the basis thereof. 10. Having said that, we must refer to two decisions of this Court that were cited at the Bar by Learned Counsel for the parties in support of their respective submissions. In Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. (2000) 7 SCC 183, a similar question arose before a two-Judge Bench of this Court. That was also a case where on the date the complaint was filed the complainant had no cause of action but by the time cognizance of the offence was taken by the Magistrate, the stipulated period of 15 days had expired and the commission of the offence was complete. This Court drew a distinction between taking cognizance of an offence and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory requirements for initiation of a criminal proceeding. Such notice is required to be given within 30 days of the receipt of the information by the complainant from the bank regarding the cheque as unpaid. Clause (c) provides that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice. Complaint petition, thus, can be filed for commission of an offence by a drawee of a cheque only 15 days after service of the notice. What are the requirements of service of a notice is no longer res integra in view of the recent decision of this Court in C.C. Alavi Haji v. Palapetty Muhammed 12. It follows that a complaint filed before the expiry of the stipulated period of 15 days was not a valid complaint for purposes of Section 142 of the Act. To that extent, therefore, the view taken in the two decisions referred to above are at variance with each other. That apart, the decision in Narsingh Das Tapadia (supra) does not, in our opinion, correctly state the legal position and may require a fresh look by a larger Bench of this Court. The cleavage in the judicial opinion on the question does not appear to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said period is permissible. A similar difference of opinion can also be seen in two decisions of the Karnataka High Court in Ashok Hegde v. Jathin Attawan 1997 Cri.L.J. 3691 and A run Hegde and Anr. v. M.J. Shetty ILR 2001 Kar 3295. The conflict in the judicial pronouncements referred to above, therefore, needs to be resolved authoritatively. 16. The second question formulated earlier may arise only in case the answer to the first question is in the negative. If no cognizance could be taken on the basis of a complaint filed prematurely, the question would be whether such a complaint could be presented again after the expiry of 15 days and beyond the period of one month under the Clause (b) of Section 142 of the Act. Whether or not the complainant can in a situation like the one in the case at hand invoke the proviso to Clause (b) and whether or not this Court can and ought to invoke its power under Section 142 to permit the complainant to file a complaint even after the expiry of period of one month stipulated under Section 142 are incidental questions that may fall for determination while answering question No. 2. 17. In the light of the above, we deem it fit t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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