{"id":242,"date":"2020-07-07T06:10:32","date_gmt":"2020-07-07T06:10:32","guid":{"rendered":"https:\/\/www.acelegalfirm.com\/blog\/?p=242"},"modified":"2020-07-07T06:10:38","modified_gmt":"2020-07-07T06:10:38","slug":"no-138-case-lies-before-expiry-of-15-days-notice","status":"publish","type":"post","link":"https:\/\/www.acelegalfirm.com\/blog\/no-138-case-lies-before-expiry-of-15-days-notice\/","title":{"rendered":"No 138 case lies before expiry of 15 days notice."},"content":{"rendered":"
\u00a0IN THE SUPREME COURT OF INDIA<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL APPELLATE JURISDICTION<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL \u00a0APPEAL NO.605 OF 2012<\/div>\n
<\/div>\n
<\/div>\n
<\/div>\n
Yogendra Pratap Singh \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u2026 Appellant<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Versus<\/div>\n
<\/div>\n
Savitri Pandey & Anr. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u2026 Respondents<\/div>\n
<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 WITH<\/div>\n
<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 CRIMINAL \u00a0APPEAL NO. 1924 OF 2014<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 CRIMINAL \u00a0APPEAL NO. 1925 OF 2014<\/div>\n
<\/div>\n
<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 JUDGMENT<\/div>\n
<\/div>\n
<\/div>\n
R.M. LODHA, CJI.<\/div>\n
<\/div>\n
<\/div>\n
<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 In the order of 03.04.2012, a \u00a0two-Judge \u00a0Bench \u00a0of \u00a0this \u00a0Court<\/div>\n
granted leave in SLP (Crl.) No.5761 \u00a0of \u00a02010. \u00a0 The \u00a0Court \u00a0formulated \u00a0the<\/div>\n
following two questions for consideration:<\/div>\n
(i) \u00a0Can cognizance of an \u00a0offence \u00a0punishable \u00a0under \u00a0Section \u00a0138 \u00a0of \u00a0the<\/div>\n
Negotiable Instruments Act 1881 be taken on the basis of a \u00a0complaint \u00a0filed<\/div>\n
before the expiry of \u00a0the \u00a0period \u00a0of \u00a015 \u00a0days \u00a0stipulated \u00a0in \u00a0the \u00a0notice<\/div>\n
required to be served upon the drawer of the cheque in terms of Section \u00a0138<\/div>\n
(c) \u00a0 of \u00a0 the Act aforementioned? And,<\/div>\n
<\/div>\n
(ii) \u00a0If answer to question No.1 is in the \u00a0negative, \u00a0can \u00a0the \u00a0complainant<\/div>\n
be \u00a0 \u00a0 \u00a0 permitted \u00a0 \u00a0 \u00a0to \u00a0 \u00a0 present \u00a0 \u00a0 the \u00a0 \u00a0 \u00a0complaint \u00a0 \u00a0 \u00a0 \u00a0 \u00a0again<\/div>\n
notwithstanding the fact that the \u00a0period \u00a0of \u00a0one \u00a0month \u00a0stipulated \u00a0under<\/div>\n
Section 142 (b) for the filing of such a complaint has expired?<\/div>\n
<\/div>\n
<\/div>\n
2. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0The two-Judge Bench \u00a0in \u00a0that \u00a0order \u00a0noticed \u00a0Section \u00a0138 \u00a0and<\/div>\n
Section 142 of the Negotiable Instruments Act, \u00a01881 \u00a0(\u201cNI \u00a0Act\u201d) \u00a0and \u00a0also<\/div>\n
referred to the two decisions \u00a0of \u00a0this \u00a0Court, \u00a0namely, \u00a0(1) \u00a0Narsingh \u00a0Das<\/div>\n
Tapadia[1] and (2) Sarav Investment & Financial Consultancy[2]. \u00a0 The \u00a0Bench<\/div>\n
also noticed the judgments of \u00a0High \u00a0Courts \u00a0of \u00a0Calcutta, \u00a0Orissa, \u00a0Bombay,<\/div>\n
Punjab and Haryana, Andhra Pradesh, Allahabad, \u00a0Gauhati, \u00a0Rajasthan, \u00a0Delhi,<\/div>\n
Madhya Pradesh, Himachal Pradesh, Madras, Jammu and \u00a0Kashmir \u00a0and \u00a0Karnataka<\/div>\n
and observed that judicial opinion on the first question \u00a0was \u00a0 split \u00a0among<\/div>\n
the High Courts in the country and so also the two decisions of \u00a0this \u00a0Court<\/div>\n
in Narsingh Das Tapadia1 and \u00a0Sarav \u00a0Investment \u00a0& \u00a0Financial \u00a0Consultancy2.<\/div>\n
Even amongst the two High Courts, namely, Jammu and Kashmir \u00a0and \u00a0Karnataka,<\/div>\n
the Bench noticed \u00a0that \u00a0the \u00a0decisions \u00a0on \u00a0the \u00a0first \u00a0question \u00a0were \u00a0not<\/div>\n
uniform. \u00a0It was felt by the \u00a0two-Judge \u00a0Bench \u00a0that \u00a0the \u00a0conflict \u00a0in \u00a0the<\/div>\n
judicial \u00a0pronouncements \u00a0needed \u00a0to \u00a0be \u00a0 resolved \u00a0 authoritatively \u00a0 and,<\/div>\n
accordingly, referred the above two questions for consideration by a \u00a0three-<\/div>\n
Judge Bench of this Court.<\/div>\n
<\/div>\n
3. \u00a0 \u00a0This is how the matter has been placed before us.<\/div>\n
<\/div>\n
4. \u00a0 \u00a0It is not necessary to narrate the facts in \u00a0detail. \u00a0 Suffice \u00a0it \u00a0to<\/div>\n
refer to factual matrix noted in the referral order which is as follows:<\/div>\n
The appellant \u00a0filed \u00a0a \u00a0complaint \u00a0under \u00a0Section \u00a0138 \u00a0of \u00a0the \u00a0Negotiable<\/div>\n
Instruments Act against respondent No.1 Smt. Savitri Pandey in the Court \u00a0of<\/div>\n
Additional Civil Judge (J.D.)\/Magistrate, Sonbhadra in the \u00a0State \u00a0of \u00a0Uttar<\/div>\n
Pradesh. \u00a0 \u00a0 \u00a0The respondent’s case was that \u00a0four \u00a0cheques \u00a0issued \u00a0by \u00a0the<\/div>\n
accused-respondent in \u00a0his \u00a0favour \u00a0were \u00a0dishonoured, \u00a0when \u00a0presented \u00a0for<\/div>\n
encashment. A notice calling upon the respondent-drawer \u00a0of \u00a0the \u00a0cheque \u00a0to<\/div>\n
pay the amount covered by the cheques was issued and duly \u00a0served \u00a0upon \u00a0the<\/div>\n
respondent as required under Section 138 (c) of The \u00a0Negotiable \u00a0Instruments<\/div>\n
Act, 1881. No payment was, however, made by the accused \u00a0till \u00a07th \u00a0October,<\/div>\n
2008 when a complaint under Section 138 of the Act aforementioned was \u00a0filed<\/div>\n
before the Magistrate. Significantly enough the notice \u00a0in \u00a0question \u00a0having<\/div>\n
been served \u00a0on \u00a023rd \u00a0September, \u00a02008, \u00a0the \u00a0complaint \u00a0presented \u00a0on \u00a07th<\/div>\n
October, 2008 was filed before expiry of the stipulated period of \u00a015 \u00a0days.<\/div>\n
The Magistrate all the same took cognizance of the offence on 14th \u00a0October,<\/div>\n
2008 and issued summons to the accused, who then assailed the said order \u00a0in<\/div>\n
a petition under Section 482 \u00a0of \u00a0the \u00a0Cr.P.C. \u00a0before \u00a0the \u00a0High \u00a0Court \u00a0of<\/div>\n
Judicature at Allahabad. The \u00a0High \u00a0Court \u00a0took \u00a0the \u00a0view \u00a0that \u00a0since \u00a0the<\/div>\n
complaint had been filed within 15 days of the service \u00a0of \u00a0the \u00a0notice \u00a0the<\/div>\n
same was clearly premature and the order passed \u00a0by \u00a0the \u00a0Magistrate \u00a0taking<\/div>\n
cognizance of the offence on the basis of such a complaint is \u00a0legally \u00a0bad.<\/div>\n
The High Court accordingly quashed the complaint and the entire \u00a0proceedings<\/div>\n
relating thereto in terms of its order impugned in the present appeal.<\/div>\n
<\/div>\n
5. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Before we advert to the two decisions of this Court in \u00a0Narsingh<\/div>\n
Das \u00a0Tapadia1 \u00a0and \u00a0Sarav \u00a0Investment \u00a0& \u00a0Financial \u00a0Consultancy2, \u00a0and \u00a0few<\/div>\n
decisions of the High Courts, we think it proper to refer \u00a0to \u00a0Sections \u00a0138<\/div>\n
and 142 of the NI Act. \u00a0Section 138 of the NI Act, as it stands today \u00a0after<\/div>\n
amendment by Act 55 of 2002, defines the ingredients of the offence and \u00a0the<\/div>\n
punishment that would follow in the event of such \u00a0an \u00a0offence \u00a0having \u00a0been<\/div>\n
committed \u00a0 and \u00a0 \u00a0the \u00a0 \u00a0proviso \u00a0 \u00a0appended \u00a0 \u00a0thereto \u00a0 \u00a0makes \u00a0 \u00a0certain<\/div>\n
eventualities\/conditions precedent for the commission of offence. \u00a0It \u00a0reads<\/div>\n
as under:<\/div>\n
<\/div>\n
138. Dishonour of cheque for insufficiency, etc., of funds in \u00a0the \u00a0account.<\/div>\n
– Where any cheque drawn by a person on an account maintained by him with \u00a0a<\/div>\n
banker for payment of any amount of money to \u00a0another \u00a0person \u00a0from \u00a0out \u00a0of<\/div>\n
that account for the discharge, in whole or in part, of any \u00a0debt \u00a0or \u00a0other<\/div>\n
liability, is returned by the bank unpaid, either because of the \u00a0amount \u00a0of<\/div>\n
money standing to the credit of that account is insufficient \u00a0to \u00a0honor \u00a0the<\/div>\n
cheque or that it exceeds the amount arranged to be paid from \u00a0that \u00a0account<\/div>\n
by an agreement made with that bank, such person shall \u00a0be \u00a0deemed \u00a0to \u00a0have<\/div>\n
committed an offence and shall without prejudice to any other provisions \u00a0of<\/div>\n
this Act, be punished with imprisonment for a term which may be extended \u00a0to<\/div>\n
two years, or with fine which may extend to twice the amount of the \u00a0cheque,<\/div>\n
or with both:<\/div>\n
<\/div>\n
<\/div>\n
Provided that \u00a0nothing \u00a0contained \u00a0in \u00a0this \u00a0section \u00a0shall \u00a0apply \u00a0 unless-<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 (a) the cheque has been presented \u00a0to \u00a0the<\/div>\n
bank within a period of six months from the date on which \u00a0it \u00a0is \u00a0drawn \u00a0or<\/div>\n
within \u00a0 the \u00a0 period \u00a0 of \u00a0 its \u00a0 \u00a0validity, \u00a0 \u00a0whichever \u00a0 \u00a0is \u00a0 \u00a0earlier;<\/div>\n
(b) the payee or the holder in due course of the cheque, \u00a0as \u00a0the \u00a0case \u00a0may<\/div>\n
be, makes a demand for the payment of the said amount of money by \u00a0giving \u00a0a<\/div>\n
notice in writing, to the drawer of the cheque, within thirty \u00a0days \u00a0of \u00a0the<\/div>\n
receipt of information by him from the bank \u00a0regarding \u00a0the \u00a0return \u00a0of \u00a0the<\/div>\n
cheque as unpaid; and \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0(c) the drawer of \u00a0such \u00a0cheque<\/div>\n
fails to make the payment of the said amount of money to the \u00a0payee \u00a0or, \u00a0as<\/div>\n
the case may be, to the holder in due course of the cheque, \u00a0within \u00a0fifteen<\/div>\n
days of the receipt of the said notice.<\/div>\n
<\/div>\n
<\/div>\n
Explanation: For the purposes of this section, \u00a0“debt \u00a0or \u00a0other \u00a0liability”<\/div>\n
means a legally enforceable debt or other liability.<\/div>\n
<\/div>\n
<\/div>\n
6. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Section \u00a0142 \u00a0deals \u00a0with \u00a0cognizance \u00a0of \u00a0offences. \u00a0 The \u00a0said<\/div>\n
provision, after amendment by Act 55 of 2002, is as under:<\/div>\n
<\/div>\n
142. Cognizance of offences.-Notwithstanding anything contained in the \u00a0Code<\/div>\n
of \u00a0 \u00a0 \u00a0Criminal \u00a0 \u00a0 \u00a0Procedure, \u00a0 \u00a0 \u00a01973 \u00a0 \u00a0 \u00a0(2 \u00a0 \u00a0 \u00a0of \u00a0 \u00a0 \u00a01974) \u00a0 \u00a0 \u00a0–<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0(a) no court shall take \u00a0cognizance \u00a0of \u00a0any \u00a0offence<\/div>\n
punishable under section 138 except upon a complaint, in \u00a0writing, \u00a0made \u00a0by<\/div>\n
the payee or, as the case may be, the holder in due course \u00a0of \u00a0the \u00a0cheque;<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0(b) such complaint is made within one month of the date \u00a0on<\/div>\n
which the cause of action arises under clause (c) of the proviso to \u00a0section<\/div>\n
138: \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Provided \u00a0that \u00a0the \u00a0 cognizance \u00a0 of \u00a0 a<\/div>\n
complaint may be taken by the Court after \u00a0the \u00a0prescribed \u00a0period, \u00a0if \u00a0the<\/div>\n
complainant satisfies the Court that he had sufficient cause for not \u00a0making<\/div>\n
a complaint within such period. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0(c) no court inferior \u00a0to<\/div>\n
that of a Metropolitan Magistrate or a \u00a0Judicial \u00a0Magistrate \u00a0of \u00a0the \u00a0first<\/div>\n
class shall try any offence punishable under section 138.<\/div>\n
<\/div>\n
7. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0It may not be out of place to mention here that \u00a0entire \u00a0Chapter<\/div>\n
XVII of the NI Act was brought in the statute \u00a0by \u00a0Act \u00a066 \u00a0of \u00a01988 \u00a0w.e.f.<\/div>\n
01.04.1989. \u00a0This Chapter comprises of Sections 138 to 147.<\/div>\n
<\/div>\n
8. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0The other two provisions \u00a0which \u00a0deserve \u00a0mention \u00a0are \u00a0Sections<\/div>\n
2(d) and 190 of the Code of \u00a0Criminal \u00a0Procedure, \u00a01973 \u00a0(\u201cCode\u201d). \u00a0 Section<\/div>\n
2(d) defines complaint in the context of the Code as follows:<\/div>\n
2(d)”complaint” means \u00a0any \u00a0allegation \u00a0made \u00a0orally \u00a0or \u00a0in \u00a0writing \u00a0to \u00a0a<\/div>\n
Magistrate, with a view to his taking action \u00a0under \u00a0this \u00a0Code, \u00a0that \u00a0some<\/div>\n
person, whether known or unknown, has committed an \u00a0offence, \u00a0but \u00a0does \u00a0not<\/div>\n
include a police report.<\/div>\n
<\/div>\n
9. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Chapter XIV of the Code bears the \u00a0title \u00a0\u2018Conditions \u00a0Requisite<\/div>\n
for Initiation \u00a0of \u00a0Proceedings\u2019. \u00a0 This \u00a0chapter \u00a0has \u00a0only \u00a0one \u00a0provision<\/div>\n
namely, \u00a0Section \u00a0190. \u00a0 Section \u00a0190 \u00a0makes \u00a0provision \u00a0for \u00a0cognizance \u00a0of<\/div>\n
offences by Magistrates. \u00a0It reads as under:<\/div>\n
190. Cognizance of offences by Magistrates. \u2013 (1) Subject to the \u00a0provisions<\/div>\n
of this Chapter, any Magistrate of the first class, and \u00a0any \u00a0Magistrate \u00a0of<\/div>\n
the second class specially empowered in this behalf under \u00a0sub-section \u00a0(2),<\/div>\n
may take cognizance of any offence\u2014<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0(a) \u00a0 \u00a0upon \u00a0receiving \u00a0a \u00a0complaint \u00a0of \u00a0 facts \u00a0 which \u00a0 constitute<\/div>\n
such offence;<\/div>\n
\u00a0 \u00a0 \u00a0 (b) \u00a0 upon a police report of such facts;<\/div>\n
\u00a0 \u00a0 \u00a0 \u00a0(c) \u00a0 \u00a0upon \u00a0 \u00a0information \u00a0 received \u00a0 from \u00a0 any \u00a0 \u00a0person \u00a0 \u00a0other<\/div>\n
than a police officer, or upon his \u00a0own \u00a0knowledge, \u00a0that \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 such<\/div>\n
offence has been committed.<\/div>\n
\u00a0 \u00a0 \u00a0 (2) \u00a0 The Chief Judicial Magistrate may empower any Magistrate of \u00a0the<\/div>\n
second class to take cognizance under sub-section (1) of \u00a0such \u00a0offences \u00a0as<\/div>\n
are within his competence to inquire into or try.<\/div>\n
<\/div>\n
10. \u00a0 \u00a0 \u00a0 \u00a0 Before the decision of this Court in Narsingh Das Tapadia1, \u00a0six<\/div>\n
High Courts had occasion to consider \u00a0the \u00a0question \u00a0whether \u00a0the \u00a0complaint<\/div>\n
under Section 138 of the NI Act was maintainable when the stipulated \u00a0period<\/div>\n
of 15 days of the receipt of the notice as provided in \u00a0clause \u00a0(c) \u00a0of \u00a0the<\/div>\n
proviso appended to \u00a0Section \u00a0138 \u00a0had \u00a0not \u00a0expired. \u00a0 The \u00a0first \u00a0of \u00a0such<\/div>\n
decisions, decided as early as on 29.07.1992 is of the Bombay High Court \u00a0in<\/div>\n
Rakesh Nemkumar Porwal[3]. The Division Bench of the Bombay High Court \u00a0held<\/div>\n
that as the complaint was presented within the period \u00a0of \u00a015 \u00a0days \u00a0of \u00a0the<\/div>\n
service \u00a0of \u00a0notice \u00a0effected \u00a0on \u00a0the \u00a0accused, \u00a0the \u00a0complaint \u00a0 was \u00a0 not<\/div>\n
maintainable for commission of offence under Section 138 of the \u00a0NI \u00a0Act \u00a0as<\/div>\n
no offence can be said to have been committed on the \u00a0date \u00a0of \u00a0lodgment \u00a0of<\/div>\n
the complaint. \u00a0Reading Section 138(c) and Section \u00a0142 \u00a0(b) \u00a0together, \u00a0the<\/div>\n
Division Bench of the Bombay High Court held that no offence can be said \u00a0to<\/div>\n
have been committed until and unless the period of \u00a015 \u00a0days \u00a0as \u00a0prescribed<\/div>\n
under clause 138(c) has in fact elapsed.<\/div>\n
<\/div>\n
11. \u00a0 \u00a0 \u00a0 \u00a0 The above view taken by the Division Bench of \u00a0the \u00a0Bombay \u00a0High<\/div>\n
Court is echoed by the High Courts of Punjab and Haryana \u00a0(Ashok \u00a0Verma)[4],<\/div>\n
Andhra Pradesh (N. Venkata Sivaram Prasad)[5], Karnataka \u00a0(Ashok \u00a0Hegde)[6],<\/div>\n
Orissa (Sri Niranjan Sahoo)[7] and Jammu and Kashmir (M\/s \u00a0Harpreet \u00a0Hosiery<\/div>\n
Rehari)[8].<\/div>\n
<\/div>\n
12. \u00a0 \u00a0 \u00a0 \u00a0 In the case of Ashok Verma4, \u00a0the \u00a0argument \u00a0of \u00a0the \u00a0petitioner<\/div>\n
accused before the Punjab and Haryana High Court was \u00a0that \u00a0Section \u00a0138 \u00a0of<\/div>\n
the NI Act envisaged a clear 15 days notice to the drawer of the cheque \u00a0and<\/div>\n
the time was to be computed from the date of the receipt of the notice, \u00a0but<\/div>\n
the impugned complaint had been filed before the expiry of 15 days \u00a0and \u00a0the<\/div>\n
complaint was liable to \u00a0be \u00a0quashed \u00a0on \u00a0this \u00a0ground. \u00a0 Dealing \u00a0with \u00a0the<\/div>\n
argument, the Punjab and Haryana High Court referred to the decision of \u00a0the<\/div>\n
Bombay High Court in Rakesh \u00a0Nemkumar \u00a0Porwal3 \u00a0and \u00a0on \u00a0going \u00a0through \u00a0the<\/div>\n
provisions of Section 138 held as under:<\/div>\n
<\/div>\n
A perusal of the above section shows that \u00a0while \u00a0the \u00a0section \u00a0defines \u00a0the<\/div>\n
necessary ingredients of the offence and punishment that can be awarded \u00a0for<\/div>\n
the commission of the offence, the proviso to \u00a0the \u00a0section \u00a0lays \u00a0down \u00a0the<\/div>\n
conditions precedent for the commission of the offence. \u00a0According \u00a0to \u00a0this<\/div>\n
proviso the necessary ingredients of the offence are \u00a0that \u00a0the \u00a0cheque \u00a0was<\/div>\n
presented to the bank within a period of six months from the date \u00a0on \u00a0which<\/div>\n
it was drawn or the period of its validity, \u00a0that \u00a0the \u00a0cheque \u00a0is \u00a0returned<\/div>\n
unpaid because of insufficiency of funds or that the amount \u00a0of \u00a0the \u00a0cheque<\/div>\n
exceeded the amount arranged to be paid from the bank and the payee \u00a0gave \u00a0a<\/div>\n
notice to the drawer claiming the amount within 15 days of \u00a0the \u00a0receipt \u00a0of<\/div>\n
the information from the bank regarding the return of \u00a0the \u00a0cheque \u00a0and \u00a0the<\/div>\n
drawer failed to make payment within 15 days of the receipt of \u00a0the \u00a0notice.<\/div>\n
Under Sub-clause (c) of the proviso a 15 days time is granted to the \u00a0drawer<\/div>\n
of the cheque to make payment and unless this period elapsed and no \u00a0payment<\/div>\n
was made, the drawer was not liable for \u00a0any \u00a0offence \u00a0under \u00a0Section 138 of<\/div>\n
the Act.<\/div>\n
<\/div>\n
<\/div>\n
13. \u00a0 \u00a0 \u00a0 \u00a0 The Division Bench of \u00a0the \u00a0Andhra \u00a0Pradesh \u00a0High \u00a0Court \u00a0in \u00a0N.<\/div>\n
Venkata Sivaram Prasad5 was confronted with the question as to \u00a0whether \u00a0the<\/div>\n
Magistrate can take cognizance of the complaint \u00a0given \u00a0in \u00a0the \u00a0case \u00a0under<\/div>\n
consideration and proceed with the trial of the complaint after \u00a0the \u00a0expiry<\/div>\n
of 15 days as prescribed under Section 138(c) of the NI Act. \u00a0 The \u00a0question<\/div>\n
that fell for consideration before the Andhra Pradesh \u00a0High \u00a0Court \u00a0involved<\/div>\n
the aspect whether the offence under Section 138 can be said to be \u00a0complete<\/div>\n
only if the drawer fails to pay the amount within 15 days of the receipt \u00a0of<\/div>\n
the notice as contemplated in proviso (c) \u00a0to \u00a0Section \u00a0138. \u00a0 The \u00a0Division<\/div>\n
Bench took into consideration the provisions contained in \u00a0Section \u00a0138 \u00a0and<\/div>\n
Section 142 of the NI Act \u00a0and \u00a0so \u00a0also \u00a0Section \u00a02(d), \u00a0Section \u00a02(n) \u00a0and<\/div>\n
Section 190 of the Code and held that until and \u00a0unless \u00a0the \u00a0criteria \u00a0laid<\/div>\n
down in Section 138 are complied with, it would not constitute \u00a0an \u00a0offence.<\/div>\n
The Division Bench of the Andhra Pradesh High Court held:<\/div>\n
<\/div>\n
Proviso (c) clearly stipulates that the Section does not \u00a0apply \u00a0unless \u00a0the<\/div>\n
drawer of the cheques fails to make the payment to the payee within 15 \u00a0days<\/div>\n
of the receipt of the said notice. Thus, the payee has \u00a0been \u00a0given \u00a0liberty<\/div>\n
to make the payment within 15 days of the receipt of the notice even \u00a0though<\/div>\n
the cheque was returned by the Bank unpaid. Hence, the \u00a0reading \u00a0of \u00a0Proviso<\/div>\n
(c) to Section 138 clearly denotes that it would not be an \u00a0offence \u00a0if \u00a0the<\/div>\n
drawer pays the amount within a period of 15 days as \u00a0a \u00a0specified \u00a0therein.<\/div>\n
In such circumstances, there could not have been any complaint alleging \u00a0the<\/div>\n
violation of Section 138. \u00a0The \u00a0pre-offence \u00a0period \u00a0granted \u00a0to \u00a0the \u00a0payee<\/div>\n
should \u00a0 be \u00a0 construed \u00a0 strictly, \u00a0 otherwise \u00a0 the \u00a0 very \u00a0 purpose \u00a0 \u00a0of<\/div>\n
Section 138(c) of the Negotiable Instruments Act would \u00a0be \u00a0frustrated. \u00a0The<\/div>\n
complainant \u00a0should \u00a0be \u00a0able \u00a0to \u00a0 point \u00a0 out \u00a0 to \u00a0 the \u00a0 offence \u00a0 under<\/div>\n
Section 138 when the complaint was filed. When the complaint is \u00a0filed \u00a0even<\/div>\n
before the offence is completed, it cannot be said that the offence is \u00a0made<\/div>\n
out and, therefore, such complaint is invalid in the eye of law. As \u00a0already<\/div>\n
noticed, under Section 142 of the Act, no Court \u00a0shall \u00a0take \u00a0cognizance \u00a0of<\/div>\n
any offence \u00a0punishable \u00a0under \u00a0Section 138, \u00a0except \u00a0upon \u00a0a \u00a0complaint \u00a0in<\/div>\n
writing made by the payee. Therefore, the necessary ingredient enabling \u00a0the<\/div>\n
Magistrate to take cognizance of the offence \u00a0is \u00a0that \u00a0there \u00a0should \u00a0be \u00a0a<\/div>\n
complaint in writing by the payee and the said complaint should disclose \u00a0an<\/div>\n
offence under Section 138. In the complaint made by \u00a0the \u00a0respondent \u00a0before<\/div>\n
the Magistrate, no offence could have been disclosed as the time \u00a0prescribed<\/div>\n
under Section 138, Proviso (c) was not exhausted by the time \u00a0the \u00a0complaint<\/div>\n
was presented to the Magistrate. Even by the date \u00a0of \u00a0service \u00a0of \u00a0summons,<\/div>\n
there was no further complaint in writing to the effect that even after \u00a0the<\/div>\n
expiry of 15 days period as mentioned in proviso (c), the drawer \u00a0failed \u00a0to<\/div>\n
pay the amount.<\/div>\n
<\/div>\n
14. \u00a0 \u00a0 \u00a0 \u00a0 The Andhra Pradesh High Court \u00a0in \u00a0N. \u00a0Venkata \u00a0Sivaram \u00a0Prasad5<\/div>\n
also considered the question in light of Section 190 of the \u00a0Code \u00a0and \u00a0held<\/div>\n
as under:<\/div>\n
The matter may also be viewed from the provisions of \u00a0Section 190, \u00a0Cr.P.C.,<\/div>\n
where the Magistrate is empowered to take cognizance \u00a0of \u00a0any \u00a0offence \u00a0upon<\/div>\n
receiving a complaint of facts which constitute such \u00a0an \u00a0offence. \u00a0We \u00a0have<\/div>\n
already referred to the definition of the ‘complaint’ in Cr.P.C. \u00a0Therefore,<\/div>\n
for taking cognizance of the offence, there should \u00a0have \u00a0been \u00a0a \u00a0complaint<\/div>\n
containing the facts which constitute an offence. Unless the offence \u00a0is \u00a0ex<\/div>\n
facie disclosed in the complaint, the Magistrate cannot have any \u00a0competence<\/div>\n
to take cognizance of the offence and proceed further. In the present \u00a0case,<\/div>\n
on the facts stated in the complaint, there could not \u00a0be \u00a0any \u00a0offence. \u00a0As<\/div>\n
the complaint on the \u00a0basis \u00a0of \u00a0which \u00a0the \u00a0Magistrate \u00a0proceeded \u00a0to \u00a0take<\/div>\n
cognizance is not a complaint at all in the eye \u00a0of \u00a0law, \u00a0the \u00a0question \u00a0of<\/div>\n
proceeding with the case on the basis of such complaint does not \u00a0arise. \u00a0In<\/div>\n
the instant case, the \u00a0Magistrate \u00a0had \u00a0no \u00a0means \u00a0of \u00a0knowing \u00a0whether \u00a0the<\/div>\n
offence was completed subsequent to the date of the \u00a0complaint \u00a0because, \u00a0as<\/div>\n
already stated, there was \u00a0no \u00a0further \u00a0written \u00a0complaint \u00a0as \u00a0required \u00a0by<\/div>\n
Section 142(a). The subsequent events on completion of the offence can \u00a0only<\/div>\n
come to the knowledge of the Court by way of \u00a0complaint \u00a0in \u00a0writing. \u00a0Apart<\/div>\n
from the original complaint which does not disclose any \u00a0offence, \u00a0there \u00a0is<\/div>\n
no further complaint. As rightly \u00a0pointed \u00a0out \u00a0by \u00a0the \u00a0learned \u00a0Additional<\/div>\n
Public Prosecutor, when the special law specifies not only \u00a0the \u00a0ingredients<\/div>\n
of the offence but also the procedure, the requirements have to be \u00a0strictly<\/div>\n
complied with. Hence, we are of the opinion that the \u00a0Court \u00a0cannot \u00a0proceed<\/div>\n
with \u00a0the \u00a0case \u00a0even \u00a0after \u00a0the \u00a0 lapse \u00a0 of \u00a0 time \u00a0 as \u00a0 prescribed \u00a0 by<\/div>\n
Section 138(c) of Negotiate Instruments Act.<\/div>\n
<\/div>\n
<\/div>\n
It was, thus, held by the Andhra Pradesh \u00a0High \u00a0Court \u00a0that \u00a0the \u00a0Magistrate<\/div>\n
should not have acted upon a premature complaint which was not \u00a0a \u00a0complaint<\/div>\n
at all in the eye of law.<\/div>\n
15. \u00a0 \u00a0 \u00a0 \u00a0 In Ashok Hegde6, the single Judge of the \u00a0Karnataka \u00a0High \u00a0Court<\/div>\n
while dealing with the contention raised by the petitioner therein that \u00a0the<\/div>\n
complainant has not given 15 days\u2019 time to the \u00a0petitioner \u00a0as \u00a0contemplated<\/div>\n
under Section 138(b) of the NI Act \u00a0and \u00a0the \u00a0complaint \u00a0was \u00a0premature \u00a0and<\/div>\n
should not have been entertained, the \u00a0single \u00a0Judge \u00a0held, \u00a0\u201c\u2026.. \u00a0from \u00a0the<\/div>\n
above, it is clear that he received the notice \u00a0back \u00a0on \u00a021.09.1989. \u00a0 Even<\/div>\n
accepting \u00a0that \u00a0the \u00a0petitioner \u00a0refused \u00a0the \u00a0notice \u00a0on \u00a020.09.1989, \u00a0the<\/div>\n
respondent ought to have filed this complaint after the expiry \u00a0of \u00a015 \u00a0days<\/div>\n
from the date of receipt of the notice. \u00a0The \u00a0date \u00a0of \u00a0issuance \u00a0of \u00a0notice<\/div>\n
cannot be taken into account\u2026\u2026.. \u00a0Therefore, the cause \u00a0of \u00a0action \u00a0had \u00a0not<\/div>\n
arisen to file the complaint against the petitioner and \u00a0the \u00a0complaint \u00a0was<\/div>\n
premature\u2026\u2026.\u201d<\/div>\n
<\/div>\n
16. \u00a0 \u00a0 \u00a0 \u00a0 The Orissa High Court in Sri Niranjan Sahoo7 also took the \u00a0view<\/div>\n
that if the complaint case is filed before expiry of 15 days as provided \u00a0in<\/div>\n
clause (c) to the proviso of Section 138, then \u00a0cognizance \u00a0of \u00a0the \u00a0offence<\/div>\n
cannot be taken in view of the provision in clause (b) of \u00a0Section \u00a0142 \u00a0and<\/div>\n
consequentially the complaint was liable to be quashed.<\/div>\n
<\/div>\n
17. \u00a0 \u00a0 \u00a0 \u00a0 The view of Jammu \u00a0and \u00a0Kashmir \u00a0High \u00a0Court \u00a0in \u00a0M\/s. \u00a0Harpreet<\/div>\n
Hosiery Rehari8 \u00a0is to the effect that under the law drawer has got 15 \u00a0days<\/div>\n
to make the payment from the receipt of notice of dishonour of \u00a0the \u00a0cheque.<\/div>\n
It is only thereafter that an action under Section 138 of the NI Act can \u00a0be<\/div>\n
initiated against the defaulting party.<\/div>\n
<\/div>\n
18. \u00a0 \u00a0 \u00a0 \u00a0 It was after the above decisions \u00a0of \u00a0the \u00a0various \u00a0High \u00a0Courts<\/div>\n
that the decision of this Court in Narsingh Das Tapadia1 came. \u00a0In \u00a0Narsingh<\/div>\n
Das Tapadia1, which was decided on 06.09.2000, the two-Judge Bench \u00a0of \u00a0this<\/div>\n
Court noted the facts as follows:<\/div>\n
<\/div>\n
\u2026\u2026 that the respondent borrowed a sum of Rs.2,30,000 from the appellant \u00a0and<\/div>\n
issued a post-dated cheque in his favour. When the cheque was presented \u00a0for<\/div>\n
demand on \u00a0 \u00a0 \u00a03-10-1994, the same was dishonoured by the bank on \u00a06-10-1994<\/div>\n
due to \u201cinsufficient funds\u201d. The appellant demanded \u00a0the \u00a0accused \u00a0to \u00a0repay<\/div>\n
the amount vide his \u00a0telegrams \u00a0sent \u00a0on \u00a0 \u00a0 \u00a07-10-1994 \u00a0and \u00a017-10-1994. \u00a0A<\/div>\n
notice was also issued to the respondent on 19-10-1994 \u00a0demanding \u00a0to \u00a0repay<\/div>\n
the amount. Despite receipt of \u00a0the \u00a0notice \u00a0on \u00a026-10-1994 \u00a0the \u00a0respondent<\/div>\n
neither paid the \u00a0amount \u00a0nor \u00a0gave \u00a0any \u00a0reply. \u00a0To \u00a0prove \u00a0his \u00a0case, \u00a0the<\/div>\n
appellant-complainant \u00a0examined \u00a0three \u00a0witnesses \u00a0and \u00a0 proved \u00a0 documents,<\/div>\n
Exhibits P-1 to P-6. In his statement under Section 313 CrPC the \u00a0respondent<\/div>\n
denied the \u00a0allegations \u00a0but \u00a0refused \u00a0to \u00a0lead \u00a0any \u00a0defence \u00a0evidence. \u00a0On<\/div>\n
analysis of the evidence and after hearing the counsel for the parties, \u00a0the<\/div>\n
trial court concluded as under:<\/div>\n
<\/div>\n
\u201cThe complainant established that the accused borrowed Rs.2,30,000 from \u00a0him<\/div>\n
and the accused issued Ext. P-3, cheque and the cheque was returned \u00a0due \u00a0to<\/div>\n
insufficiency of funds and the accused did not repay the amount in spite \u00a0of<\/div>\n
receipt of notice from the complainant and hence the accused is \u00a0liable \u00a0for<\/div>\n
punishment under Section 138 of the NI Act.\u201d<\/div>\n
<\/div>\n
As noticed earlier, the appeal filed by the respondent was dismissed on \u00a019-<\/div>\n
4-1997. \u00a0The \u00a0High \u00a0Court \u00a0found \u00a0that \u00a0as \u00a0 the \u00a0 notice \u00a0 intimating \u00a0 the<\/div>\n
dishonourment of cheque was served \u00a0upon \u00a0the \u00a0accused \u00a0on \u00a026-10-1994, \u00a0the<\/div>\n
appellant-complainant could not file the complaint unless the expiry \u00a0of \u00a015<\/div>\n
days\u2019 period. It was found on facts that the complaint \u00a0filed \u00a0on \u00a08-11-1994<\/div>\n
was returned after finding some defect in it. \u00a0However, \u00a0when \u00a0refiled, \u00a0the<\/div>\n
Court took the cognizance on \u00a017-11-1994. \u00a0The \u00a0High \u00a0Court \u00a0held \u00a0that \u00a0the<\/div>\n
original complaint having been filed on 8-11-1994 was premature \u00a0and \u00a0liable<\/div>\n
to be dismissed.<\/div>\n
<\/div>\n
<\/div>\n
19. \u00a0 \u00a0 \u00a0 \u00a0 This Court in Narsingh Das Tapadia1 \u00a0considered \u00a0the \u00a0provisions<\/div>\n
contained in clause (c) of the proviso to Section 138 \u00a0and \u00a0Section \u00a0142 \u00a0of<\/div>\n
the NI Act and also considered \u00a0the \u00a0expression \u00a0\u201ctaking \u00a0cognizance \u00a0of \u00a0an<\/div>\n
offence\u201d and held that mere presentation \u00a0of \u00a0the \u00a0complaint \u00a0on \u00a008.11.1994<\/div>\n
when \u00a0it \u00a0was \u00a0 returned \u00a0 to \u00a0 the \u00a0complainant \u00a0on \u00a0the \u00a0ground \u00a0that \u00a0the<\/div>\n
verification was not signed by the counsel, could not be \u00a0termed \u00a0to \u00a0be \u00a0an<\/div>\n
action of the Magistrate taking cognizance within \u00a0the \u00a0meaning \u00a0of \u00a0Section<\/div>\n
142 of the NI Act. \u00a0The two-Judge Bench did not \u00a0approve \u00a0the \u00a0view \u00a0of \u00a0the<\/div>\n
High Court and held that the High Court erroneously held \u00a0the \u00a0complaint \u00a0as<\/div>\n
premature. \u00a0Consequently, the judgment of the High Court was set \u00a0aside \u00a0and<\/div>\n
the conviction of the respondent \u00a0under \u00a0Section \u00a0138 \u00a0of \u00a0the \u00a0NI \u00a0Act \u00a0was<\/div>\n
upheld.<\/div>\n
<\/div>\n
20. \u00a0 \u00a0 \u00a0 \u00a0 After the decision of this Court in Narsingh Das \u00a0Tapadia1, \u00a0the<\/div>\n
Karnataka High Court in Arun Hegde[9] did not accept the contention \u00a0of \u00a0the<\/div>\n
accused that the complaint filed under Section 138 on 15th \u00a0day \u00a0of \u00a0service<\/div>\n
of notice of demand was premature and as \u00a0such \u00a0not \u00a0maintainable. \u00a0 Relying<\/div>\n
upon Narsingh Das Tapadia1, the single Judge of the Karnataka High Court \u00a0in<\/div>\n
Arun Hegde9 held that if the complaint was found to \u00a0be \u00a0premature, \u00a0it \u00a0can<\/div>\n
await maturity or be returned to the complainant for filing \u00a0later \u00a0and \u00a0its<\/div>\n
mere presentation at \u00a0an \u00a0earlier \u00a0date \u00a0need \u00a0not \u00a0necessarily \u00a0render \u00a0the<\/div>\n
complaint liable to be dismissed or confer any right \u00a0upon \u00a0the \u00a0accused \u00a0to<\/div>\n
absolve himself from the criminal liability for the offence committed.<\/div>\n
<\/div>\n
21. \u00a0 \u00a0 \u00a0 \u00a0 In Hem Lata Gupta[10], \u00a0the Allahabad High Court \u00a0while \u00a0dealing<\/div>\n
with the complaint filed before expiry of 15 days, after \u00a0relying \u00a0upon \u00a0the<\/div>\n
decision of this Court in Narsingh Das Tapadia1 held that the bar of \u00a0expiry<\/div>\n
of 15 days from the date of service of notice is for taking \u00a0cognizance \u00a0and<\/div>\n
not for filing complaint.<\/div>\n
<\/div>\n
22. \u00a0 \u00a0 \u00a0 \u00a0 In Mahendra Agarwal[11], the Rajasthan High \u00a0Court \u00a0adopted \u00a0the<\/div>\n
reasoning that was made by this Court in \u00a0Narsingh \u00a0Das \u00a0Tapadia1 \u00a0and \u00a0held<\/div>\n
that mere presentation of the complaint in \u00a0the \u00a0court \u00a0cannot \u00a0be \u00a0held \u00a0to<\/div>\n
mean, that its \u00a0cognizance \u00a0had \u00a0been \u00a0taken \u00a0by \u00a0the \u00a0Magistrate. \u00a0 If \u00a0the<\/div>\n
complaint is found to be premature, it can await maturity or be returned \u00a0to<\/div>\n
the complainant for filing later and its mere \u00a0presentation \u00a0at \u00a0an \u00a0earlier<\/div>\n
date need not necessarily render the complaint liable \u00a0to \u00a0be \u00a0dismissed \u00a0or<\/div>\n
confer any right upon the accused \u00a0to \u00a0absolve \u00a0himself \u00a0from \u00a0the \u00a0criminal<\/div>\n
liability for the offence committed.<\/div>\n
<\/div>\n
23. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0In \u00a0Bapulal \u00a0B. \u00a0Kacchi[12], \u00a0the \u00a0Madhya \u00a0Pradesh \u00a0High \u00a0Court<\/div>\n
considered the matter \u00a0against \u00a0the \u00a0order \u00a0passed \u00a0by \u00a0the \u00a0Sessions \u00a0Judge<\/div>\n
setting aside the order passed by the Chief \u00a0Judicial \u00a0Magistrate, \u00a0Shajapur<\/div>\n
whereby he refused to register the complaint under Section \u00a0138 \u00a0of \u00a0the \u00a0NI<\/div>\n
Act against the accused as it was found to be premature since 15 \u00a0days \u00a0from<\/div>\n
the date of receipt of the notice by \u00a0the \u00a0accused \u00a0had \u00a0not \u00a0elapsed. \u00a0 The<\/div>\n
Sessions Judge set aside the order of the Chief Judicial Magistrate \u00a0dealing<\/div>\n
with criminal revision filed by \u00a0the \u00a0accused. \u00a0Madhya \u00a0Pradesh \u00a0High \u00a0Court<\/div>\n
followed the decision of this Court in Narsingh Das Tapadia1 and \u00a0held \u00a0that<\/div>\n
the order of the Chief Judicial Magistrate in dismissing the \u00a0complaint \u00a0was<\/div>\n
wrong and that order was rightly set aside by the revisional court.<\/div>\n
<\/div>\n
24. \u00a0 \u00a0 \u00a0 \u00a0 The Gauhati High Court in Yunus Khan[13] relying \u00a0upon \u00a0Narsingh<\/div>\n
Das Tapadia1 \u00a0took the view that mere presentation of \u00a0a \u00a0complaint \u00a0in \u00a0the<\/div>\n
Court of Judicial \u00a0Magistrate \u00a0does \u00a0not \u00a0mean \u00a0that \u00a0Magistrate \u00a0has \u00a0taken<\/div>\n
cognizance of the same. \u00a0 Though the complaint was filed under \u00a0Section \u00a0138<\/div>\n
of the NI Act in the Court of Judicial Magistrate \u00a0when \u00a0only \u00a013 \u00a0days \u00a0had<\/div>\n
elapsed from the date of receipt of the notice and the requisite \u00a0period \u00a0of<\/div>\n
15 days was not yet completed but when the Magistrate \u00a0took \u00a0cognizance, \u00a015<\/div>\n
days had elapsed from the date of the receipt of the \u00a0notice \u00a0and \u00a0thus \u00a0the<\/div>\n
complaint already stood validly \u00a0instituted \u00a0and \u00a0the \u00a0prosecution \u00a0launched<\/div>\n
against the accused on the basis of such a complaint could not be \u00a0held \u00a0bad<\/div>\n
in law.<\/div>\n
<\/div>\n
25. \u00a0 \u00a0 \u00a0 \u00a0 A single Judge of Delhi High Court in Zenith Fashion \u00a0Makers[14]<\/div>\n
\u00a0 was concerned with the case arising from the following facts:<\/div>\n
<\/div>\n
The complaint under Section 138 of Negotiable Instrument Act \u00a0was \u00a0filed \u00a0by<\/div>\n
the respondent for dishonour of two cheques No. 615385 \u00a0dated \u00a020.7.2003 \u00a0of<\/div>\n
Rs. 8,00,000\/- and No.615387 dated \u00a020.9.2003 \u00a0of \u00a0Rs.3,00,000\/-. \u00a0Both \u00a0the<\/div>\n
cheques were dishonoured on account of insufficiency of \u00a0funds. \u00a0The \u00a0return<\/div>\n
memo of the bank is dated 20.9.2003. The legal notice \u00a0under \u00a0Section 138 of<\/div>\n
Negotiable Instruments Act was issued on 15.10.2003 through \u00a0Regd. \u00a0Post \u00a0as<\/div>\n
well as through speed post. The postal acknowledgment card shows service \u00a0on<\/div>\n
18.10.2003. The complainant pleaded that the notices were duly received \u00a0but<\/div>\n
no payment in respect of the dishonoured cheques was made within 15 days \u00a0of<\/div>\n
the notice as was required by \u00a0the \u00a0law \u00a0as \u00a0well \u00a0as \u00a0by \u00a0the \u00a0notice. \u00a0The<\/div>\n
complaint is presented on 31.10.2003. \u00a0The \u00a0Magistrate \u00a0took \u00a0cognizance \u00a0on<\/div>\n
31.10.2003 itself and directed issue of process on the \u00a0same \u00a0day. \u00a0What \u00a0is<\/div>\n
contended in this petition under Section 482 Cr.P.C. is that the \u00a0notice \u00a0of<\/div>\n
demand being \u00a0of \u00a015.10.2003, \u00a0dispatched \u00a0on \u00a017.10.2003 \u00a0and \u00a0received \u00a0on<\/div>\n
18.10.2003, the complaint was filed within 15 days after service \u00a0of \u00a0notice<\/div>\n
and hence was pre-mature as the cause of action could accrue only \u00a0after \u00a015<\/div>\n
days of the notice, i.e., on 3.11.2003.<\/div>\n
<\/div>\n
Despite the fact that the complaint was presented before the \u00a0expiry \u00a0of \u00a015<\/div>\n
days of service of notice and the Magistrate \u00a0took \u00a0cognizance \u00a0also \u00a0before<\/div>\n
the expiry of 15 days, the \u00a0High \u00a0Court \u00a0strangely \u00a0held \u00a0that \u00a0a \u00a0premature<\/div>\n
complaint under Section 138 of the NI Act cannot be quashed \u00a0on \u00a0the \u00a0ground<\/div>\n
of pre-maturity since there was no plea on the side of the accused \u00a0that \u00a0he<\/div>\n
would have paid the cheque amount had the complainant given it the \u00a0required<\/div>\n
time. \u00a0The Delhi High Court while doing so relied upon the decision of \u00a0this<\/div>\n
Court in Narsingh Das Tapadia1 and also \u00a0invoked \u00a0the \u00a0maxim \u00a0\u2018Actus \u00a0curiae<\/div>\n
neminem gravabit\u2019, an act of the Court shall prejudice no man.<\/div>\n
<\/div>\n
26. \u00a0 \u00a0 \u00a0 \u00a0 The Allahabad High Court in Ganga Ram Singh[15] \u00a0took \u00a0the \u00a0view<\/div>\n
that if the complaint was filed under Section \u00a0138 \u00a0of \u00a0the \u00a0NI \u00a0Act \u00a0before<\/div>\n
expiry of 15 days of statutory \u00a0notice, \u00a0the \u00a0concerned \u00a0court \u00a0should \u00a0have<\/div>\n
waited and allowed the complainant \u00a0to \u00a0establish \u00a0its \u00a0case \u00a0or \u00a0cognizance<\/div>\n
should have been taken after the expiry of the stipulated period instead \u00a0of<\/div>\n
dismissing the complaint outright as premature.<\/div>\n
<\/div>\n
27. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0A single Judge of the Madras High Court, \u00a0following \u00a0Narsingh<\/div>\n
Das Tapadia1 held that though the complaint was preferred three \u00a0days \u00a0short<\/div>\n
of the time to be availed by the accused to settle the dues \u00a0but \u00a0since \u00a0the<\/div>\n
Magistrate \u00a0had \u00a0taken \u00a0cognizance \u00a0of \u00a0the \u00a0complaint \u00a0presented \u00a0 by \u00a0 the<\/div>\n
complainant after the 15 days time granted under \u00a0the \u00a0statutory \u00a0notice \u00a0to<\/div>\n
settle the amount due to complainant, the complaint \u00a0cannot \u00a0be \u00a0quashed \u00a0on<\/div>\n
the ground that it was filed prematurely.<\/div>\n
<\/div>\n
28. \u00a0 \u00a0 \u00a0 \u00a0 In S. Janak Singh[16], the Jammu and Kashmir High \u00a0Court \u00a0 \u00a0took<\/div>\n
the view with regard to presentation of \u00a0complaint \u00a0before \u00a0the \u00a0accrual \u00a0of<\/div>\n
cause of action that though the complaint under Section 138 of \u00a0the \u00a0NI \u00a0Act<\/div>\n
having been filed before the accrual of cause of action, the same could \u00a0not<\/div>\n
be legally entertained by \u00a0the \u00a0trial \u00a0court. \u00a0 Relying \u00a0upon \u00a0Narsingh \u00a0Das<\/div>\n
Tapadia1, it was held that if the complaint was found to \u00a0be \u00a0premature, \u00a0it<\/div>\n
can await maturity or be returned to the complainant for \u00a0filing \u00a0later \u00a0and<\/div>\n
its mere presentation at an earlier date need \u00a0not \u00a0necessarily \u00a0render \u00a0the<\/div>\n
complaint liable to be \u00a0dismissed \u00a0or \u00a0confer \u00a0any \u00a0right \u00a0upon \u00a0accused \u00a0to<\/div>\n
absolve himself from the criminal liability for the offence committed. \u00a0 The<\/div>\n
view of the single Judge of the Jammu and Kashmir High Court is \u00a0founded \u00a0on<\/div>\n
the decision of this Court in Narsingh Das Tapadia1.<\/div>\n
<\/div>\n
29. \u00a0 \u00a0 \u00a0 \u00a0 For about 7 years since the decision was given by this Court \u00a0in<\/div>\n
Narsingh \u00a0Das \u00a0Tapadia1, \u00a0the \u00a0various \u00a0High \u00a0Courts, \u00a0as \u00a0indicated \u00a0above,<\/div>\n
continued to take the view that presentation of a \u00a0complaint \u00a0under \u00a0Section<\/div>\n
138 of the NI Act before the accrual of the cause of action does not \u00a0render<\/div>\n
it not maintainable if cognizance had been taken \u00a0by \u00a0the \u00a0Magistrate \u00a0after<\/div>\n
expiry of 15 days of the period of notice. \u00a0In such matters, \u00a0no \u00a0illegality<\/div>\n
or impropriety found to have been committed \u00a0by \u00a0the \u00a0Magistrate \u00a0in \u00a0taking<\/div>\n
cognizance upon such complaint. \u00a0 This \u00a0legal \u00a0position, \u00a0however, \u00a0was \u00a0not<\/div>\n
accepted by a two-Judge Bench decision of this Court in Sarav \u00a0Investment \u00a0&<\/div>\n
Financial Consultancy2. \u00a0Dealing with the provision \u00a0under \u00a0Section \u00a0138 \u00a0of<\/div>\n
the NI Act, this Court held that Section 138 contained \u00a0a \u00a0penal \u00a0provision;<\/div>\n
it was a special \u00a0statute. \u00a0 Having \u00a0regard \u00a0to \u00a0the \u00a0purport \u00a0of \u00a0the \u00a0said<\/div>\n
provision as also in view \u00a0of \u00a0the \u00a0fact \u00a0that \u00a0it \u00a0provides \u00a0for \u00a0a \u00a0severe<\/div>\n
penalty, \u00a0the \u00a0provision \u00a0warrant \u00a0a \u00a0strict \u00a0 construction. \u00a0 \u00a0This \u00a0 Court<\/div>\n
emphasized that clause (c) of the proviso to Section 138 provides \u00a0that \u00a0the<\/div>\n
holder of the cheque must be given an opportunity to pay the \u00a0amount \u00a0within<\/div>\n
15 days of the receipt of the notice. \u00a0Complaint, thus, \u00a0can \u00a0be \u00a0filed \u00a0for<\/div>\n
commission of an offence by drawee of the cheque only 15 days after \u00a0service<\/div>\n
of the notice. \u00a0In Sarav Investment & Financial \u00a0Consultancy2, \u00a0this \u00a0Court,<\/div>\n
thus, held that service of notice in terms of Section \u00a0138 \u00a0proviso \u00a0(b) \u00a0of<\/div>\n
the NI Act was a part of cause of \u00a0action \u00a0for \u00a0lodging \u00a0the \u00a0complaint \u00a0and<\/div>\n
communication to the accused about the fact of dishonouring of \u00a0the \u00a0cheques<\/div>\n
and calling upon him to pay the amount within \u00a015 \u00a0days \u00a0was \u00a0imperative \u00a0in<\/div>\n
character. \u00a0It is true that in Sarav Investment \u00a0& \u00a0Financial \u00a0Consultancy2,<\/div>\n
there is no reference \u00a0of \u00a0the \u00a0decision \u00a0of \u00a0this \u00a0Court \u00a0in \u00a0Narsingh \u00a0Das<\/div>\n
Tapadia1.<\/div>\n
<\/div>\n
30. \u00a0 \u00a0 \u00a0 \u00a0 Sarav Investment & Financial Consultancy2 \u00a0 \u00a0 led \u00a0to \u00a0the \u00a0view<\/div>\n
being taken by the High Courts that a complaint under Section 138 of the \u00a0NI<\/div>\n
Act filed before expiry of 15 days of service of notice \u00a0was \u00a0premature \u00a0and<\/div>\n
such complaint could not be treated as complaint \u00a0in \u00a0the \u00a0eye \u00a0of \u00a0law \u00a0and<\/div>\n
criminal proceedings initiated are liable to be quashed. \u00a0This is seen \u00a0from<\/div>\n
the view of the Calcutta High Court in Sandip Guha[17] and the \u00a0judgment \u00a0of<\/div>\n
the Himachal Pradesh High Court in Rattan Chand[18].<\/div>\n
<\/div>\n
31. \u00a0 \u00a0 \u00a0 \u00a0 Section 138 of the NI Act comprises of the main provision \u00a0which<\/div>\n
defines the ingredients of the offence and the punishment that would \u00a0follow<\/div>\n
in the event of such an offence having \u00a0been \u00a0committed. \u00a0Appended \u00a0to \u00a0this<\/div>\n
Section is also a proviso which has three clauses, viz., (a), (b) \u00a0and \u00a0(c).<\/div>\n
The offence under Section 138 is made effective only on fulfillment \u00a0of \u00a0the<\/div>\n
eventualities contained in clauses (a), (b) and \u00a0(c) \u00a0of \u00a0the \u00a0proviso. \u00a0For<\/div>\n
completion of an offence under Section 138 \u00a0of \u00a0the \u00a0NI \u00a0Act \u00a0not \u00a0only \u00a0the<\/div>\n
satisfaction of the ingredients of offence set out in the main part \u00a0of \u00a0the<\/div>\n
provision is necessary \u00a0but \u00a0it \u00a0is \u00a0also \u00a0imperative \u00a0that \u00a0all \u00a0the \u00a0three<\/div>\n
eventualities mentioned in clauses (a), (b) \u00a0and \u00a0(c) \u00a0of \u00a0the \u00a0proviso \u00a0are<\/div>\n
satisfied. Mere issuance \u00a0of \u00a0a \u00a0cheque \u00a0and \u00a0dishonour \u00a0thereof \u00a0would \u00a0not<\/div>\n
constitute an offence by itself under Section 138.<\/div>\n
<\/div>\n
32. \u00a0 \u00a0 \u00a0 \u00a0 Section 138 of the NI Act has been analysed \u00a0by \u00a0this \u00a0Court \u00a0in<\/div>\n
Kusum Ingots & Alloys Ltd.[19] wherein this Court said \u00a0that \u00a0the \u00a0following<\/div>\n
ingredients are required to \u00a0be \u00a0satisfied \u00a0for \u00a0making \u00a0out \u00a0a \u00a0case \u00a0under<\/div>\n
Section 138 of the NI Act:<\/div>\n
<\/div>\n
(i) a person must have drawn a cheque on an account maintained by him \u00a0in \u00a0a<\/div>\n
bank for payment of a certain amount of money to another person from out \u00a0of<\/div>\n
that account for the discharge of any debt or other liability;<\/div>\n
<\/div>\n
(ii) that cheque has been presented to the \u00a0bank \u00a0within \u00a0a \u00a0period \u00a0of \u00a0six<\/div>\n
months from the date on which it is \u00a0drawn \u00a0or \u00a0within \u00a0the \u00a0period \u00a0of \u00a0its<\/div>\n
validity, whichever is earlier;<\/div>\n
<\/div>\n
(iii) that cheque is returned by the bank unpaid, either because the \u00a0amount<\/div>\n
of money standing to the credit of the account \u00a0is \u00a0insufficient \u00a0to \u00a0honour<\/div>\n
the cheque or that it exceeds the amount \u00a0arranged \u00a0to \u00a0be \u00a0paid \u00a0from \u00a0that<\/div>\n
account by an agreement made with the bank;<\/div>\n
<\/div>\n
(iv) the payee or the holder in due course of the cheque makes a demand \u00a0for<\/div>\n
the payment of the said amount of money by giving a notice \u00a0in \u00a0writing, \u00a0to<\/div>\n
the drawer of the cheque, within 15 days of the receipt \u00a0of \u00a0information \u00a0by<\/div>\n
him from the bank regarding the return of the cheque as unpaid;<\/div>\n
<\/div>\n
(v) the drawer of such cheque fails to make payment of the \u00a0said \u00a0amount \u00a0of<\/div>\n
money to the payee or the holder in due course of the cheque within 15 \u00a0days<\/div>\n
of the receipt of the said notice.<\/div>\n
<\/div>\n
33. \u00a0 \u00a0 \u00a0 \u00a0 We are in agreement with the above analysis.<\/div>\n
<\/div>\n
34. \u00a0 \u00a0 \u00a0 \u00a0 In K.R. Indira[20], a two-Judge Bench \u00a0of \u00a0this \u00a0Court \u00a0observed<\/div>\n
that the offence under Section 138 of the NI Act could be completed \u00a0if \u00a0all<\/div>\n
the above components are satisfied.<\/div>\n
<\/div>\n
35. \u00a0 \u00a0 \u00a0 \u00a0 Insofar as \u00a0the \u00a0present \u00a0reference \u00a0is \u00a0concerned, \u00a0the \u00a0debate<\/div>\n
broadly centers around clause (c) of the proviso to Section 138 \u00a0of \u00a0the \u00a0NI<\/div>\n
Act. The requirement of clause (c) of the proviso is that the drawer of \u00a0the<\/div>\n
cheque must have failed to make the payment of \u00a0the \u00a0cheque \u00a0amount \u00a0to \u00a0the<\/div>\n
payee within 15 days of the \u00a0receipt \u00a0of \u00a0the \u00a0notice. \u00a0Clause \u00a0(c) \u00a0of \u00a0the<\/div>\n
proviso offers a total period of 15 days to the \u00a0drawer \u00a0from \u00a0the \u00a0date \u00a0of<\/div>\n
receipt of \u00a0the \u00a0notice \u00a0to \u00a0make \u00a0payment \u00a0of \u00a0the \u00a0cheque \u00a0amount \u00a0on \u00a0its<\/div>\n
dishonour.<\/div>\n
<\/div>\n
36. \u00a0 \u00a0 \u00a0 \u00a0 Can an offence under Section 138 of the NI Act be said \u00a0to \u00a0have<\/div>\n
been committed when the period provided in clause (c) \u00a0of \u00a0the \u00a0proviso \u00a0has<\/div>\n
not expired? Section 2(d) of the Code \u00a0defines \u00a0\u2018complaint\u2019. \u00a0 According \u00a0to<\/div>\n
this definition, complaint means any allegation made orally \u00a0or \u00a0in \u00a0writing<\/div>\n
to a Magistrate with a view to taking his action against a \u00a0person \u00a0who \u00a0has<\/div>\n
committed an offence. Commission of an offence is a sine qua non for \u00a0filing<\/div>\n
a complaint and for taking cognizance of such offence. \u00a0A \u00a0bare \u00a0reading \u00a0of<\/div>\n
the provision contained in clause (c) of the proviso makes it clear that \u00a0no<\/div>\n
complaint can be filed for an offence \u00a0under \u00a0Section \u00a0138 \u00a0of \u00a0the \u00a0NI \u00a0Act<\/div>\n
unless the period of 15 days has elapsed. Any complaint \u00a0before \u00a0the \u00a0expiry<\/div>\n
of 15 days from the date \u00a0on \u00a0which \u00a0the \u00a0notice \u00a0has \u00a0been \u00a0served \u00a0on \u00a0the<\/div>\n
drawer\/accused is no complaint at all in the eye of \u00a0law. \u00a0 It \u00a0is \u00a0not \u00a0the<\/div>\n
question of prematurity of the \u00a0complaint where it is \u00a0filed \u00a0before \u00a0expiry<\/div>\n
of 15 days from the date on which notice has been served on him, \u00a0it \u00a0is \u00a0no<\/div>\n
complaint at all under law. As a matter of fact, Section 142 of the NI \u00a0Act,<\/div>\n
inter alia, creates a legal bar on the Court from taking \u00a0cognizance \u00a0of \u00a0an<\/div>\n
offence \u00a0under \u00a0Section \u00a0138 \u00a0except \u00a0upon \u00a0a \u00a0written \u00a0complaint. \u00a0Since \u00a0a<\/div>\n
complaint filed under Section 138 of the NI Act \u00a0before \u00a0the \u00a0expiry \u00a0of \u00a015<\/div>\n
days \u00a0from \u00a0the \u00a0date \u00a0on \u00a0which \u00a0the \u00a0notice \u00a0has \u00a0been \u00a0 served \u00a0 on \u00a0 the<\/div>\n
drawer\/accused is no complaint in the eye of law, obviously, \u00a0no \u00a0cognizance<\/div>\n
of an offence can be taken on the basis of such \u00a0complaint. \u00a0Merely \u00a0because<\/div>\n
at the time of taking cognizance by the Court, the period \u00a0of \u00a015 \u00a0days \u00a0has<\/div>\n
expired \u00a0from \u00a0the \u00a0date \u00a0on \u00a0which \u00a0notice \u00a0 has \u00a0 been \u00a0 served \u00a0 on \u00a0 the<\/div>\n
drawer\/accused, the Court is not \u00a0clothed \u00a0with \u00a0the \u00a0jurisdiction \u00a0to \u00a0take<\/div>\n
cognizance of an offence under Section 138 on a complaint filed \u00a0before \u00a0the<\/div>\n
expiry of 15 days from the date of receipt of notice by the \u00a0drawer \u00a0of \u00a0the<\/div>\n
cheque.<\/div>\n
<\/div>\n
37. \u00a0 \u00a0 \u00a0 \u00a0 \u00a0A complaint filed before expiry of 15 days \u00a0from \u00a0the \u00a0date \u00a0on<\/div>\n
which notice has been served on drawer\/accused cannot be \u00a0said \u00a0to \u00a0disclose<\/div>\n
the cause of action in terms of clause (c) of the \u00a0proviso \u00a0to \u00a0Section \u00a0138<\/div>\n
and upon such complaint which does not disclose \u00a0the \u00a0cause \u00a0of \u00a0action \u00a0the<\/div>\n
Court is not competent to take cognizance. \u00a0A conjoint \u00a0reading \u00a0of \u00a0Section<\/div>\n
138, which defines as to when and under what circumstances \u00a0an \u00a0offence \u00a0can<\/div>\n
be said to have been committed, with Section 142(b) \u00a0of \u00a0the \u00a0NI \u00a0Act, \u00a0that<\/div>\n
reiterates the position of the point of time when the cause \u00a0of \u00a0action \u00a0has<\/div>\n
arisen, leaves no manner of doubt that no offence can be said to \u00a0have \u00a0been<\/div>\n
committed unless and until the \u00a0period \u00a0of \u00a015 \u00a0days, \u00a0as \u00a0prescribed \u00a0under<\/div>\n
clause (c) of the proviso to Section 138, has, in fact, elapsed. \u00a0Therefore,<\/div>\n
a Court is barred in law from taking cognizance of \u00a0such \u00a0complaint. \u00a0It \u00a0is<\/div>\n
not open to the Court to take cognizance of such a complaint merely \u00a0because<\/div>\n
on the date of consideration or taking cognizance thereof \u00a0a \u00a0period \u00a0of \u00a015<\/div>\n
days \u00a0from \u00a0the \u00a0date \u00a0on \u00a0which \u00a0the \u00a0notice \u00a0has \u00a0been \u00a0 served \u00a0 on \u00a0 the<\/div>\n
drawer\/accused has elapsed. We have no doubt that \u00a0all \u00a0the \u00a0five \u00a0essential<\/div>\n
features of Section 138 of the NI Act, as noted \u00a0in \u00a0the \u00a0judgment \u00a0of \u00a0this<\/div>\n
Court in Kusum Ingots & Alloys Ltd.19 and which we have \u00a0approved, \u00a0must \u00a0be<\/div>\n
satisfied for a complaint to be filed \u00a0under \u00a0Section \u00a0138. \u00a0If \u00a0the \u00a0period<\/div>\n
prescribed in clause (c) of the proviso to \u00a0Section \u00a0138 \u00a0has \u00a0not \u00a0expired,<\/div>\n
there is no commission of an offence nor accrual \u00a0of \u00a0cause \u00a0of \u00a0action \u00a0for<\/div>\n
filing of complaint under Section 138 of the NI Act.<\/div>\n
<\/div>\n
38. \u00a0 \u00a0 \u00a0 \u00a0 We, therefore, do not approve the view taken by \u00a0this \u00a0Court \u00a0in<\/div>\n
Narsingh Das Tapadia1 and so also \u00a0the \u00a0judgments \u00a0of \u00a0various \u00a0High \u00a0Courts<\/div>\n
following Narsingh Das Tapadia1 that if the complaint under Section \u00a0138 \u00a0is<\/div>\n
filed before expiry of 15 days from \u00a0the \u00a0date \u00a0on \u00a0which \u00a0notice \u00a0has \u00a0been<\/div>\n
served on the drawer\/accused the same is premature and if \u00a0on \u00a0the \u00a0date \u00a0of<\/div>\n
taking cognizance a period of 15 days from the date of service of notice \u00a0on<\/div>\n
the drawer\/accused has expired, \u00a0such \u00a0complaint \u00a0was \u00a0legally \u00a0maintainable<\/div>\n
and, hence, the same is overruled.<\/div>\n
<\/div>\n
39. \u00a0 \u00a0 \u00a0 \u00a0 Rather, the view taken by \u00a0this \u00a0Court \u00a0in \u00a0Sarav \u00a0Investment \u00a0&<\/div>\n
Financial Consultancy2 wherein this Court held that \u00a0service \u00a0of \u00a0notice \u00a0in<\/div>\n
terms of Section 138 proviso (b) of the NI Act was a part of \u00a0the \u00a0cause \u00a0of<\/div>\n
action for lodging the complaint and communication to the accused about \u00a0the<\/div>\n
fact of dishonouring of the cheque \u00a0and \u00a0calling \u00a0upon \u00a0to \u00a0pay \u00a0the \u00a0amount<\/div>\n
within 15 days was imperative \u00a0in \u00a0character, \u00a0commends \u00a0itself \u00a0to \u00a0us. \u00a0As<\/div>\n
noticed by us earlier, no complaint can be maintained against the drawer \u00a0of<\/div>\n
the cheque before the expiry of 15 days from the date of receipt \u00a0of \u00a0notice<\/div>\n
because the drawer\/accused cannot be said \u00a0to \u00a0have \u00a0committed \u00a0any \u00a0offence<\/div>\n
until then. We approve the decision of this \u00a0Court \u00a0in \u00a0Sarav \u00a0Investment \u00a0&<\/div>\n
Financial Consultancy2 and also the judgments of the High Courts which \u00a0have<\/div>\n
taken the view following this judgment that the complaint under Section \u00a0138<\/div>\n
of the NI Act filed before the expiry of 15 days of service of notice \u00a0could<\/div>\n
not be treated as a complaint in the eye of \u00a0law \u00a0and \u00a0criminal \u00a0proceedings<\/div>\n
initiated on such complaint are liable to be quashed.<\/div>\n
<\/div>\n
40. \u00a0 \u00a0 \u00a0 \u00a0 Our answer to question (i) is, therefore, in the negative.<\/div>\n
<\/div>\n
41. \u00a0 \u00a0 \u00a0 \u00a0 The other question is that if the answer to question (i) \u00a0is \u00a0in<\/div>\n
the negative, can the complainant be \u00a0permitted \u00a0to \u00a0present \u00a0the \u00a0complaint<\/div>\n
again notwithstanding the fact that \u00a0the \u00a0period \u00a0of \u00a0one \u00a0month \u00a0stipulated<\/div>\n
under Section 142(b) for the filing of such a complaint has expired.<\/div>\n
<\/div>\n
42. \u00a0 \u00a0 \u00a0 \u00a0 Section 142 of the NI Act prescribes the mode and \u00a0so \u00a0also \u00a0the<\/div>\n
time within which a complaint for an offence under Section \u00a0138 \u00a0of \u00a0the \u00a0NI<\/div>\n
Act can be filed. A complaint made under Section 138 by \u00a0the \u00a0payee \u00a0or \u00a0the<\/div>\n
holder in due course of the cheque has to be in \u00a0writing \u00a0and \u00a0needs \u00a0to \u00a0be<\/div>\n
made within one month from the date on which the cause of action has \u00a0arisen<\/div>\n
under clause (c) of the proviso to Section 138. \u00a0The \u00a0period \u00a0of \u00a0one \u00a0month<\/div>\n
under Section 142(b) begins from the date on which the cause of \u00a0action \u00a0has<\/div>\n
arisen under clause (c) of the proviso \u00a0to \u00a0Section \u00a0138. \u00a0However, \u00a0if \u00a0the<\/div>\n
complainant satisfies the Court that he had sufficient cause for not \u00a0making<\/div>\n
a complaint within the prescribed period of one month, a \u00a0complaint \u00a0may \u00a0be<\/div>\n
taken by the Court after the prescribed period. Now, \u00a0since \u00a0our \u00a0answer \u00a0to<\/div>\n
question (i) is in the negative, we observe that the payee or the holder \u00a0in<\/div>\n
due course of the cheque may file a fresh complaint within \u00a0one \u00a0month \u00a0from<\/div>\n
the date of decision in the criminal case \u00a0and, \u00a0in \u00a0that \u00a0event, \u00a0delay \u00a0in<\/div>\n
filing the complaint will be treated \u00a0as \u00a0having \u00a0been \u00a0condoned \u00a0under \u00a0the<\/div>\n
proviso to clause (b) of Section 142 of the NI Act. This direction shall \u00a0be<\/div>\n
deemed to be applicable to all such pending cases where the \u00a0complaint \u00a0does<\/div>\n
not proceed further in view of our \u00a0answer \u00a0to \u00a0question \u00a0(i). \u00a0As \u00a0we \u00a0have<\/div>\n
already held that a complaint filed before the expiry of 15 \u00a0days \u00a0from \u00a0the<\/div>\n
date of receipt of notice issued under clause (c) of the proviso to \u00a0Section<\/div>\n
138 is not maintainable, the complainant cannot be permitted to present \u00a0the<\/div>\n
very same complaint at any later stage. His remedy is only to file \u00a0a \u00a0fresh<\/div>\n
complaint; and if the same could not be filed \u00a0within \u00a0the \u00a0time \u00a0prescribed<\/div>\n
under Section 142(b), his recourse is to seek the benefit \u00a0of \u00a0the \u00a0proviso,<\/div>\n
satisfying \u00a0the \u00a0Court \u00a0of \u00a0sufficient \u00a0cause. \u00a0Question \u00a0(ii) \u00a0is \u00a0answered<\/div>\n
accordingly.<\/div>\n
<\/div>\n
43. \u00a0 \u00a0 \u00a0 \u00a0 Criminal appeals may now be \u00a0listed \u00a0for \u00a0consideration \u00a0by \u00a0the<\/div>\n
regular Bench.<\/div>\n
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\u00a0IN THE SUPREME COURT OF INDIA \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL APPELLATE JURISDICTION \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL \u00a0APPEAL NO.605 OF 2012 Yogendra Pratap Singh \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u2026 Appellant… Read More »No 138 case lies before expiry of 15 days notice.<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":252,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[],"yoast_head":"\nNo 138 case lies before expiry of 15 days notice. - Blog<\/title>\n<meta name=\"robots\" content=\"index, follow\" \/>\n<meta name=\"googlebot\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<meta name=\"bingbot\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.acelegalfirm.com\/blog\/no-138-case-lies-before-expiry-of-15-days-notice\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"No 138 case lies before expiry of 15 days notice. - Blog\" \/>\n<meta property=\"og:description\" content=\"\u00a0IN THE SUPREME COURT OF INDIA \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL APPELLATE JURISDICTION \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0CRIMINAL \u00a0APPEAL NO.605 OF 2012 Yogendra Pratap Singh \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u2026 Appellant… Read More »No 138 case lies before expiry of 15 days notice.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.acelegalfirm.com\/blog\/no-138-case-lies-before-expiry-of-15-days-notice\/\" \/>\n<meta property=\"og:site_name\" content=\"Blog\" \/>\n<meta property=\"article:published_time\" content=\"2020-07-07T06:10:32+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2020-07-07T06:10:38+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.acelegalfirm.com\/blog\/wp-content\/uploads\/2020\/07\/news_image_4.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"480\" \/>\n\t<meta property=\"og:image:height\" content=\"360\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.acelegalfirm.com\/blog\/#website\",\"url\":\"https:\/\/www.acelegalfirm.com\/blog\/\",\"name\":\"Blog\",\"description\":\"\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":\"https:\/\/www.acelegalfirm.com\/blog\/?s={search_term_string}\",\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"ImageObject\",\"@id\":\"https:\/\/www.acelegalfirm.com\/blog\/no-138-case-lies-before-expiry-of-15-days-notice\/#primaryimage\",\"inLanguage\":\"en-US\",\"url\":\"https:\/\/www.acelegalfirm.com\/blog\/wp-content\/uploads\/2020\/07\/news_image_4.jpg\",\"width\":480,\"height\":360,\"caption\":\"Lawyer's hammer and word LAW. 3d rendered. 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