Crl. M. A. No.7478 of 2005

14th December, 2007

Petitioner Counsel: V. S. PARMAR
Respondent Counsel: SUNIL VASHISTH

Cases Cited:
Narsingh Das Tapadia Vs. Goverdhan Das Partani, 2001 ALL MR (Cri) 561 (S.C.)=2000 SCC (Cri) 1326 [Para 12,13,14,18]
Devarapalli Lakshminarayana Reddy Vs. Narayana Reddy, (1976)3 SCC 252 [Para PARA14,19]
CREF Finance Ltd. Vs. Shree Shanthi Homes (P) Ltd., 2006 ALL MR (Cri) 238 (S.C.)=(2005)7 SCC 467 [Para 15,19]
Ajit Kumar Palit Vs. State of West Bengal, 1963 Supp. (1) SCR 953 [Para PARA15]
Sarup Ram Vs. State of Haryana, 1977 Cri.L.J. 1420 [Para PARA 19]
State of M.P. Vs. Bhooraji, 2001 ALL MR (Cri) 2185 (S.C.)=2001(43) ACC 696 [Para 21]
Sadanandan Bhadra Vs. Madhwan Sunil Kumar, AIR 1998 SC 3043 [Para PARA 24]
Narsingh Das Tapadia Vs. Goverdhanlal, 2001(1) ALL MR 525 (S.C.)=2000 SCC (Cri) 1326 [Para 12,13,14,18]

JUDGMENT

-Application has been filed for quashing the proceedings of criminal complaint case No.1849 of 2004 (Saurabh Srivastava Vs. Anil Kumar Shukla) under Section 138 of Negotiable Instruments Act (hereinafter referred as an Act), P. S. Kotwali pending in the court of C.J.M, Hamirpur.

2. I have heard Sri V. S. Parmar, learned counsel for the applicant and Sri Sunil Vasistha, learned counsel for the complainant opposite party No.2 and learned A.G.A. for State and have perused the material on record.

3. Counter and rejoinder affidavits have been exchanged.

4. Brief facts are that the complainant opposite party No.2 filed a complaint in the court of C.J.M. on 18-9-2004 alleging that the complainant was the owner of Truck No.UP 77 A 3932 along with his brother. This truck was sold to accused applicant for Rs.3 lacs and Rs.75,000/- was paid in cash and four cheques were issued by the applicant accused. One cheque was for Rs.1.50 lacs No.272140 dated 10-6-2004 and three cheques were for Rs.25,000/- each dated 5-6-2004 and 5-7-2004 and 5-8-2004. All these three cheques were post dated cheques. The cheque for Rs.1.5 lacs was presented in the Bank on 10-6-2004 but it was returned with the endorsement insufficient fund. The complainant gave a notice on 29-6-2004 but to no effect. The cheque dated 5-8-2004 for Rs.25000/- was also returned by the Bank on 27-8-2004. Thereafter the complainant gave a notice dated 3-9-2004 regarding the two cheques i.e. one cheque for Rs.25000/- and other for Rs.1.50 lacs which was served on the accused applicant but he did not make any payment and thereafter complaint was filed on 18-9-2004.

5. The case of the applicant is that he had received the notice on 6-9-2004 but the complaint was filed on 18-9-2004 i.e. before the expiry of period of 15 days and therefore the complaint was not competent under Section 142(b) of the Act as cause of action had not arisen to take cognizance and the complaint being premature is liable to be quashed. It has also been contended that admittedly complainant gave a notice on 29-6-2004 regarding the cheque for Rs.1.50 lakhs but no complaint was filed regarding that notice and therefore the present complaint is incompetent for that amount.

6. Complainant filed counter affidavit and contended that complaint is not premature and the applicant accused admits the receipt of the notice but he did not make the payment and therefore the complaint is not liable to be quashed. Learned Magistrate passed the summoning order on 15-4-2005 and it shows that the complaint is not premature.

7. Learned counsel for the applicant has contended that the complaint is premature and is liable to be rejected and that the complainant should have presented the complaint after the expiry of 15 days of the receipt of the notice and in any case if the complaint was presented earlier it should have been returned as provided in Section 201(1), Cr.P,C. or cognizance should have been taken after that period but it was not done. The question whether the complaint is premature or not depends on the fact as to when the magistrate is said to have taken cognizance of offence. In the instant case on 18-9-2004 learned Magistrate applied his judicial mind and directed to register the case and also fixed a date for recording the statement of the complainant under Section 200, Cr.P.C. He also argued that regarding cheque for Rs.1.50 lacs the complaint should have been presented within one month after the expiry of the period of notice dated 29-6-2004.

8. Learned counsel for the complainant has contended that although the learned Magistrate directed for registration of the case and also fixed the date for recording of the statement on 18-9-2004 but it cannot be said that learned Magistrate took cognizance on 18-9-2004 and on this basis he contended that the complaint is not premature and the application under Section 482, Cr.P.C. is liable to be dismissed.

9. It will be relevant to refer the provisions (b) and (c) of Section 138 of the Act, which are as under :

"Section 138(b) : the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

Section 138 (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."

10. Section 142 of the N.I. Act which deals with the cognizance of offence reads as under :-

"Section 142 : 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;

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period;

(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."

11. Conjoint reading of the proviso (b) and (c) to Section 138 and Section 142 of the Act shows that complainant is required to give notice within 30 days after receiving the information from the Bank regarding non payment of the cheque and the accused is given 15 days time to make the payment. In case the payment is not made within 15 days of the receipt of the notice the complainant can present the complaint within one month. It shows that cause of action to file the complaint accrues to the complainant after the expiry of 15 days of the receipt of the notice.

12. In the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani and other, 2000 SCC (Cri) 1326 : [2001 ALL MR (Cri) 561 (S.C.) : 2001(1) ALL MR 525 (S.C.)] question about filing of the premature complaint came before the Hon'ble Apex Court and it was held that clause (b) of Section 142 of the Act prescribes the 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 of the Act. No period is prescribed before which the complaint cannot be filed and if filed not disclosing the cause of action in terms of Clause (c) of the proviso to Section 138 of the Act the court may not take cognizance till the time the cause of action arises to the complaint. Therefore it shows that there is no period prescribed before which the complaint cannot be filed and if complaint is filed before 15 days the only restriction is that cognizance should not be taken before the expiry of 15 days prescribed in S.138(c) of the Act.

13. Now question arise as to when the magistrate is said to have taken cognizance of an offence. In the case of Narsingh Das Tapadia [2001 ALL MR (Cri) 561 (S.C.) : 2001(1) ALL MR 525 (S.C.)] (supra), it has been held that "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 not for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied his 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 offence.

14. In the case of Narsingh Das [2001 ALL MR (Cri) 561 (S.C.) : 2001(1) ALL MR 525 (S.C.)] (supra) the case of Devarapalli Lakshminarayana Reddy Vs. Narayana Reddy, (1976)3 SCC 252 has been referred where it has been held that broadly speaking, when on receiving a complaint, the Magistrate applied his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

15. In a recent case of CREF Finance Ltd. Vs. Shree Shanthi Homes (P) Ltd., (2005)7 SCC 467 : [2006 ALL MR (Cri) 238 (S.C.)] a complaint was filed under Section 138 of the Act and the learned Magistrate passed the order "Presented on 19-4-2000; Cognizance taken.....Register and put up on 1-6-2000. It was ordered in rubber seal but was signed by the learned Magistrate. The application under Section 482, Cr.P.C. was filed in the High Court and it was held that the complaint was incompetent because accused were summoned without taking cognizance in the matter. When the case came up before Hon'ble Apex Court while considering the matter it referred the case of Ajit Kumar Palit Vs. State of West Bengal, 1963 Supp. (1) SCR 953 where it has been observed as under:-

"The word cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a court or judge, to take notice of judicially. It was stated in Gopal Marwart Vs. Emperor (AIR 1943 Pat 245) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari Vs. State of U.P., (1951 SCR 312) that the word cognizance was used in the code to indicate the point when the magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import and is not perhaps always used in exactly the same sense. As observed in Emperor Vs. Sourindra Mohan Chuckerbutty, (ILR (1910)37 Cal 412) taking cognizance does not involve any formal action; or 'indeed action of any kind, but occurs as soon as a Magistrate, as such, applied his mind to the suspected commission of an offence.' Where the statute prescribes the material on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled."

16. The Hon'ble Court has further observed in para-10 of the judgment as under:

"In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of the statement of the complainant on 1-6-2000. Even if we assume, though that is not the case, that the words cognizance taken were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and therefore once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of the process is at a later stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the compliant is not entertainable by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority, etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance."

17. In view of this, legal position it is clear that if the complaint is filed but the Magistrate does not proceed under Section 200, Cr.P.C. it cannot be said that the Magistrate has taken cognizance. But if the complaint is filed and the Magistrate proceeds under Section 200, Cr.P.C. and directs to register the case and even if fixes the date for taking evidence under Section 200, Cr.P.C. he takes cognizance of the offence on the date of the filing of the complaint itself.

18. In the case of Narsingh Das [2001 ALL MR (Cri) 561 (S.C.) : 2001(1) ALL MR 525 (S.C.)] (supra) the notice was given on 26-10-1994 and the complaint was filed on 8-11-1994 but was returned for proper verification. It was again filed on 12-11-1994 when the cognizance was taken. This was beyond the period of 15 days and was a valid cognizance. But in the instant case the facts are different and the complainant cannot get benefit on the basis of this judgment.

19. Learned counsel for the complainant referred the case of Sarup Ram Vs. State of Haryana, 1977 Cri.L.J. 1420. In that case after the receipt of the complaint Magistrate directed for registration of the case and also directed that the statement of the complainant would be recorded on the adjourned date but on the adjourned date he directed the police to register and investigate the case under Section 156(3), Cr.P.C. and it was held that Magistrate had not taken cognizance on the date, the complaint was filed but the facts of this very case are different and it is rather covered by the judgment of Devarapalli Lakshminarayana Reddy (Supra). But in view of the law as laid down in the case of CREF Finance Ltd. [2006 ALL MR (Cri) 238 (S.C.)] (supra) the case of Sarup Ram is of no help to the complainant.

20. In the instant case the complaint was presented on 18-9-2004 and the learned Magistrate directed to register the case and fixed 22-9-2004 for recording the statement under Section 200, Cr.P.C. and the statement was recorded on 22-9-2004. Therefore learned Magistrate exercised his judicial mind on 18-9-2004 and he took cognizance on 18-9-2004 in the matter.

21. Learned counsel for the complainant has also cited the case of State of M.P. Vs. Bhooraji and others, 2001(43) ACC 696 : [2001 ALL MR (Cri) 2185 (S.C.)] where it was held that if there is any error, omission or irregularity in proceedings held before or during the trial or in any enquiry, unless it has occasioned failure of justice, Superior Courts shall not quash the proceedings on this ground. In the present case the facts are entirely different and this ruling does not help the applicant. Moreover this ruling is under the provisions of Section 465, Cr.P.C. The present case is covered by Section 142 of the Act which is a self contained section regarding the cognizance of the offence. Section 142 excludes the applicability of Criminal Procedure Code and the ruling as cited by the learned counsel for the complainant does not help him.

22. In a case under the Act the cause of action can arise after the expiry of 15 days of the service of notice and Section 142(b) specifically provides that the Magistrate can take cognizance on the complaint made within one month of the date on which cause of action arises under clause (c) of the proviso to Section 138 of the Act. Therefore when the Magistrate took cognizance in the instant case cause of action had not arisen and this position cannot be treated as error, omission or irregularity. The accused has been given 15 days period to make the payment. It is a statutory provision and this period cannot be curtailed. The legislature made a provision that on the complaint presented after 30 days cognizance could be taken if the complainant satisfies the court for the delay. But in its wisdom the legislature did not make any provision to cover the contingency where the complaint is presented before the expiry of 15 days of the notice under proviso (c) Section 138 of the Act. It has purposely not been done as it would curtail the right of the accused to make the payment within 15 days because if the payment is made no offence remains under section 138 of the Act. Therefore the cognizance taken before expiry of 15 days was not legal.

23. Learned counsel for the applicant has also contended that regarding, the cheque for Rs.1.50 lacs a notice was admittedly given by the complainant on 29-6-2004 but no complaint was filed on the basis of that notice. It is settled law that cause of action can arise only once although the cheque may be presented several times within the period of six months or during the period the validity of the cheque remains. If complaint is not filed within a period of thirty days after 15 days of the service of the notice, the complaint is barred in view of Section 142(b) of the Act.

24. In the case of Sadanandan Bhadra Vs. Madhwan Sunil Kumar, AIR 1998 SC 3043, it has been held by Hon'ble Apex Court that cause of action can arise only once although every dishonour gives fresh right and one may go on presenting cheque so as to enable him to exercise such right at any point of time during validity of the cheque. But once he gives notice under clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated period, he would be liable for the offence and the cause of action for filing complaint will arise. Needless to say that the period of one month for filing of the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the receipt of the notice by the drawer expires.

25. In view of this position complainant should have filed his complaint regarding the cheque for Rs.1.50 lacs within the time as prescribed and the claim for that cheque in the present complaint is time barred.

26. In the circumstances, I come to the conclusion that the complaint was filed before the cause of action accrued to the complainant regarding the cheque for Rs.25,000/- and beyond time regarding the Cheque for Rs.1.50 lacs and therefore it was premature in one case and time barred in the other and the cognizance taken by the learned Magistrate was not legal within the ambit of Section 142(b) of the Act and therefore the complaint is liable to be quashed.

27. Application is hereby allowed and the complaint is hereby quashed. Interim order dated 27-6-2005 stands vacated.

Application allowed.