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SUPREME COURT OF INDIA
R.M. LODHA, CJI., KURIAN JOSEPH, ROHINTON FALI NARIMAN, JJ.
Yogendra Pratap Singh – Appellant
Versus
Savitri Pandey & Anr. – Respondents
Criminal Appeal Nos. 605 of 2012, 1924 & 1925 of 2014
Decided On : 19-09-2014
[(2007) 14 SCC 753]—Approved.
[(2000) 7 SCC 183] ; [ILR 2001 Kar. 3295] ; [2002 Cri. L.J. 1522] ; [RLW 2003 (1) Raj. 673] ; [2004 Cri. L.J. 1140] ; [2004 (1) GLT 652] ; [121 (2005) DLT 297] ; [2005 Cri. L.J. 3681]—Overruled.
(B) Negotiable Instruments Act, 1881—Sections 138 and 142(b)—Criminal Procedure Code, 1973—Section 200—Dishonour of cheque—Premature complaint—Re-presentation of same cheque—Complainant cannot be permitted to present very same complaint at any later stage—His remedy is only to file a fresh complaint and if same could not be filed within time prescribed under Section 142(b), his recourse is to seek benefit of proviso, satisfying Court of sufficient cause. (Para 42)
Facts of Case—Matter emanating from event of dishonour of cheque. Magistrate took cognizance of offence and issued summons to accused, who then assailed the order in a petition under Section 482 of the Cr.P.C. before the High Court of Judicature at Allahabad. High Court took the view that since the complaint had been filed within 15 days of the service of notice the same was clearly premature and order passed by the Magistrate taking cognizance of offence on the basis of such a complaint is legally bad. High Court accordingly quashed complaint and entire proceedings relating thereto in terms of its order impugned in present appeal.
Findings of Court—Payee or 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 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 complaint does not proceed further. 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, complainant cannot be permitted to present very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within time prescribed under Section 142(b), his recourse is to seek benefit of the proviso, satisfying Court of sufficient cause
Premature complaints under Section 138 of the Negotiable Instruments Act are not maintainable: No complaint can be filed for an offence under Section 138 unless the period of 15 days has elapsed after service of notice under clause (c) of the proviso to Section 138; such a complaint before expiry of 15 days is no complaint in the eye of law, and no cognizance can be taken thereon, even if 15 days expire by the time the court considers it. (!) (!) (!)
Conditions for offence under Section 138: The offence requires satisfaction of all ingredients in the main provision and clauses (a), (b), and (c) of the proviso, including drawer’s failure to pay within 15 days of notice receipt; without this, no offence or cause of action arises. (!) (!) (!) (!)
Cognizance barred by Section 142: Courts cannot take cognizance under Section 138 except on a valid written complaint by payee/holder disclosing the offence; a premature complaint does not disclose cause of action under clause (c) of proviso to Section 138. (!) (!) (!) (!)
Remedy for complainant on premature complaint: Complainant cannot represent the same premature complaint later; must file a fresh complaint within one month of cause of action under Section 142(b), or seek condonation of delay under the proviso to Section 142(b) upon showing sufficient cause. (!) (!)
Direction for pending cases: In cases where complaints do not proceed due to prematurity, payee/holder may file fresh complaint within one month from the date of this decision, with delay condoned under proviso to Section 142(b). (!)
Ingredients of Section 138 offence: (i) cheque drawn for discharge of debt/liability; (ii) presented within validity period; (iii) returned unpaid for insufficiency/excess; (iv) notice within 30 days of dishonour info; (v) no payment within 15 days of notice. (!) (!) (!) (!) (!) (!)
Judgment
R.M. Lodha, CJI.
In the order of 03.04.2012, a two-Judge Bench of this Court granted leave in SLP (Crl.) No.5761 of 2010. The Court formulated the following two questions for consideration:
(i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? 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?
2. The two-Judge Bench in that order noticed Section 138 and Section 142 of the Negotiable Instruments Act, 1881 (“NI Act”) and also referred to the two decisions of this Court, namely, (1) Narsingh Das Tapadia v. Goverdhan Das Partani and Anr.; [(2000) 7 SCC 183] and (2) Sarav Investment & Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr.; [(2007) 14 SCC 753]. The Bench also noticed the judgments of High Courts of Calcutta, Orissa, Bombay, Punjab and Haryana, Andhra Pradesh, Allahabad, Gauhati, Rajasthan, Delhi, Madhya Pradesh, Himachal Pradesh, Madras, Jammu and Kashmir and Karnataka and observed that judicial opinion on the first question was split among the High Courts in the country and so also the two decisions of this Court in Narsingh Das Tapadia v. Goverdhan Das Partani and Anr.; [(2000) 7 SCC 183] and Sarav Investment & Financial Consultancy Sarav Investment & Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr.; [(2007) 14 SCC 753]. Even amongst the two High Courts, namely, Jammu and Kashmir and Karnataka, the Bench noticed that the decisions on the first question were not uniform. It was felt by the two-Judge Bench that the conflict in the judicial pronouncements needed to be resolved authoritatively and, accordingly, referred 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 the stipulated period of 15 days. The Magistrate all the same took cognizance of the offence on 14th October, 2008 and issued summons to the accused, who then assailed the said order in a petition under Section 482 of the Cr.P.C. before the High Court of Judicature at Allahabad. The High Court took the view that since the complaint had been filed within 15 days of the service of the notice the same was clearly premature and the order passed by the Magistrate taking cognizance of the offence on the basis of such a complaint is legally bad. The High Court accordingly quashed the complaint and the entire proceedings relating thereto in terms of
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