IMPORTANT POINT
If a complaint under Section 138 of Negotiable Instruments Act is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed.

Headnote:(i) Negotiable Instruments Act, 1881-Sections 138 and 142-Code of Criminal Procedure, 1973-Sections 190 and 200-Conviction for dishonour of cheque-Legality of-Complaint filed before expiry of 15 days from receipt of demand notice-Complaint returned for want of signature in verification-When refiled upon which Magistrate took cognizance of offence, 15 time expired-High Court set aside conviction on ground complaint premature-Not correct-Case can be said to be instituted in Court only when Court takes cognizance of offence-If complaint is premature it can await maturity or returned for filing later-Premature filing of complaint need not necessarily render complaint liable to be dismissed-No cognizance taken when complaint returned-Conviction upheld.
       Mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. (Para 6)
       In the instant case mere presentation of the complaint on 8.11.1994 when it is returned to the complainant/appellant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the magistrate taking cognizance within the meaning of Section 142 of the Act. The High Court appears to have committed not only mistake of law but a mistake of fact as well. No cognizance was taken on 8.11.1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17.11.1994. The learned Judge of the High Court, without reference to various provisions of the Act and the Code of Criminal Procedure, as the impugned judgment is based upon wrong assumptions of law and facts, the same is liable to be set aside. The conviction of the respondent under Section 138 of the Act is upheld. (Paras 7 & 8)
       (ii) Negotiable Instruments Act, 1881-Section 138-Dishonour of cheque-Conviction for-Trial Court awarding six months simple imprisonment-Accused paying the amount due under cheque and interest thereon pending appeal-No useful purpose would be served by sending accused back to jail-Imposing penalty of fine would meet ends of justice-Sentence substituted with fine of Rs. 5,000/-. (Para 8)
       (iii) Code of Criminal Procedure, 1973-Sections 190 and 200-Cognizance of offence-What amounts to- Filing of complaint" and taking cognizance of offence"-Distinction between.
       "Taking cognizance of an offence" by the court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complaintant. If the Magistrate or the court is shown to have applied the mind not for the purpose of taking action upon the complaint 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 ofence. (Para 5)

JUDGMENT

Sethi, J.-Leave granted.

2. On proof of charge, the respondent was convicted by the Trial Court under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") and sentenced to undergo simple imprisonment for six months. His appeal was dismissed by the Appellate Court confirming the conviction 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.

3. The facts of the case are that therespondent borrowed a sum of Rs.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 26th October, 1994, the respondent neither paid the amount nor gave any reply. To prove his case, the complainant/appellant examined three witnesses and proved documents Exhibits P-1 to P-6. In his statement under Section 313 of the Cr.P.C. the respondent denied the allegations but refused to lead any defence evidence. On analysis of the evidence and after hearing the councel for the parties, the Trial Court concluded as under :

"The complainant established that the accused borrowed Rs. 2,30,000/- from him and the accused issued Ex. P-3; cheque and the cheque was returned due to insuffiency of funds and the accused did not repay the amount inspite of receipt of notice from the complainant and hence the accused is liable for punishment u/s 138 of N.I. Act."

4. As noticed earlier, the appeal filed by the respondent was dismissed on 19th April, 1997. The High Court found that as the notice intimating the dishonourment of cheque was served upon the accused on 26th October, 1994, the compainant/appellant 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 re-filed, 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 pre-mature and liable to be dismissed.

Section 142 of the Act provides :

"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 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."

Sub-section (c) of section 138 which makes the dishonour of 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 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."

The compliance of clause (c) of proviso to section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed, and if filed not disclosing the

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2000 Supreme(SC) 1469

Cases Referred (4)