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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
S.M. Modak, J.
Rambhau Tulsiram Bhusari – Appellant
Versus
Assanand Dhanumal Vensiani – Respondent
Criminal Appeal No. 280 of 2010
Decided On : 22-10-2019
Negotiable Instruments Act - Section 200 - Trial Court - Gave evidence- Claim of compensation - The copy of said judgment is made available to me. I have perused it. There was an application for withdrawal of the order of issue of process. It was rejected in a Writ jurisdiction. This Court quashed the proceedings. The notice was received on 19-01-1991. The complaint was filed on 31-01-1991 i.e. earlier to 15 days. The learned Magistrate in the present case applied the ratio to the facts before him. He considered 03-06-2006 (as the date on which the envelope was not claimed) as the date of receipt of a notice and considered 18-06-2006 (15 days from 03-06-2006) as the date of starting of limitation. He also considered 15-06-2006, as the date of filing of complaint and hence held the complaint not maintainable. He has chosen not to discuss other evidence – Held, Mere presentation of the complaint in the Court cannot be held to mean, that is cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complaint 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 - Honble supreme Court interpreted the phrase taking cognizance of an offence. It was differentiated from mere filing of complaint. Taking cognizance has been interpreted as - Broadly speaking when on receiving a complaint, the Magistrate to apply his mind for the purposes of proceeding under Section 200 and succeeding Section in Chapter XV of 1973 Code he is said to have taken cognizance of the offence within the meaning of Section 190 - When the Magistrate is justified (on fulfillment of certain conditions) in taking cognizance is laid down in section 142 of the Negotiable Instruments Act. But the phrase taking cognizance has not been defined in the provisions of Negotiable Instruments Act. Section 138 defines and punishes the offence. Hence, the procedure laid down in the Code of Criminal Procedure, 1973 (to the extent not provided in the N.I. Act) will be applicable - Section 190 of the Code of Criminal Procedure, lays down the contingencies in which the Magistrate can take cognizance. The appellant also relied upon some of the judgments on this issue. The appellant wants to suggest that the position as existing on the date of taking of cognizance has to be considered - Appeal is disposed of
JUDGMENT :
S. M. Modak, J.
In this appeal after hearing the appellant, I have dictated the order on 27-09-2019 by sitting on the dais. At that time, I have decided to allow the appeal. However, prior to signing the order, another view of Hon'ble Supreme Court in case of Yogendra Pratap Singh vs Savitri Pandey and another, (2014) 10 SCC 713 came to my notice.
2. So, I have brought it to the notice of learned Advocate for the appellant on 11-10-2019. Learned Advocate Shri Tiwari accepted his fault in not bringing it to my notice the ratio laid down in Yogendra's case (supra). According to him, it was due to oversight and it was unintentional. I have accepted it. Then Shri Tiwari argued the matter afresh and relied upon number of judgments. On this background, now I am dealing with the controversy on the basis of the latest view.
Background of appeal
3. The appeal was filed in this Court on the background of acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1882 (for short, 'N.I. Act'). The present appellant filed Criminal Complaint Case No.213/2006. The accused issued a cheque of Rs. 1 Lakh to the complainant towards the discharge of the liability arising out of a hand loan taken by the accused.
4. The cheque got dishonoured for the reason 'insufficient funds'. The accused failed to make payment in spite of receipt of a constructive notice dated 23-05-2006. On this background, the complainant approaches the trial Court vide complaint dated 15-06-2006. The complainant gave evidence. Accused himself also gave evidence. After hearing arguments, learned Magistrate acquitted the accused. It was for the reason that complaint was filed at premature stage. That is to say the accused was not given 15 days clear time in making the payment.
Controversy involved
5. So, the controversy which is raised before me is as follows :
(a) what will be the correct date on which notice is deemed to have been served on the accused?
(b) Whether the learned Magistrate was justified at a final stage in going into the issue of premature filing.
(c) Whether the learned Magistrate ought to have considered date of filing of complaint that is 15-06-2006 or the date of issue of process i.e. 28-08-2006 as the date for taking cognizance.
6. The controversy has arisen because there was no clear-cut date about service of notice dated 23-05-2006. The envelope containing the notice sent by R.P.A.D returned back "as the accused/addressee was not found". The return envelope was tendered in evidence at Exhibit-19. The accused also cross examined the complainant. So, I would like to give my observations about the actual date of receipt of notice and whether trial Court observation to that effect is correct or not. Because question of interpretation of law to the facts can be looked after then only.
Receipt of notice
7. For deciding this issue, the following dates are important :-
| Sr.No. | Date | Events |
| 1 | 02-05-2006 | Date of cheque (Exh.15) |
| 2 | 12-05-2006 | Cheque return memo by drawee/accused bank.(Exh.16) |
| 3 | 23-05-2006 | Date of notice (Ex.17) |
| 4 | 23-05-2006 | Posting (Exh.18) |
| 5 | (Exh.19) | Returned envelope with A.D. slip. |
| 6 | (Exh.20) | Notice dated 23-05-2006 taken out from returned envelope. |
It will be material to consider the dates mentioned by the postal authorities on the returned envelope at Exhibit.19.
| Sr.No. | Date | Events |
| 1 | 24-05-2006 | The address on the envelope not falling within the limit of one Postman. |
| 2 | 25 and 26-05-2006 | Normal visit by the Postman. |
| 3 | 27-05-2006 | Intimation. |
| 4 | 03-06-2006 | Not claimed. |
Admittedly, the complainant has not examined postal authorities. So the above dates and events are writt
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