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2001 DIGILAW 1106 (ALL)

HEM LATA GUPTA v. STATE OF UTTAR PRADESH

2001-12-01

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 30-6-2000 passed by Xth Additional Sessions Judge, Kanpur Nagar in Criminal Revision No. 428 of 1999 allowing the revision and setting aside the order dated 8-10-1999 passed by IInd Additional Chief Metropolitan Magistrate in Criminal Case No. 861 of 1998 rejecting the objection of the opposite party No. 2 against the summoning order. ( 2 ) IT appears that applicant, Smt. Hem Lata Gupta, filed a complaint against opposite party No. 2. Smt. Manju Rathi on 26-6-1998 under Section 138 Negotiable Instruments Act with the allegations that on 29-5-1998, the opposite party No. 2 had issued four cheques of different amounts relating to Punjab National Bank, Nayaganj-Branch, Kanpur payable to applicant. The applicant presented above cheques to her Bank for realisation. On 11-6-1998 she was informed that the account of Smt. Manju Rathi had been closed and therefore, the cheques were dishonoured. The applicant, accordingly, sent a notice to opposite party No. 2 on 13-6-1998. But the opposite party No. 2 neither paid any amount, nor replied the notice; hence she filed complaint on 26-6-1998. ( 3 ) THE applicant examined herself under Section 200, Cr. P. C. and her witnesses Rajendra Kumar (P. W. 1) and Satish Singh Chauhan (P. W. 2) under Section 202, Cr. P. C. On perusal of the statement of complainant under Section 200 and her witnesses under Section 202, Cr. P. C. the learned Additional Chief Metropolitan Magistrate summoned the opposite party No. 2 under Section 138 Negotiable Instruments Act, vide order dated 18-11-1998. ( 4 ) ON appearance her opposite party No. 2 filed objection against the summoning order on the ground that the cheques issued by her were post dated. According to complainant, the notices were issued on 13-6-1998, but the complaint was filed only on 26-6-1998, while complaint could be filed only after 15 days of the service of the notice. Therefore complaint was liable to be dismissed on this ground. ( 5 ) THE learned Additional Chief Metropolitan Magistrate on considering the above objection held that complaint cannot be dismissed merely on the ground that it was filed prior to expiry of 15 days from the date of service of notice. Therefore, objection had no force. With these findings he rejected the objection of the opposite party No. 2, vide order dated 8-10-1999. Therefore, objection had no force. With these findings he rejected the objection of the opposite party No. 2, vide order dated 8-10-1999. ( 6 ) AGGRIEVED with the above order, the opposite party No. 2 filed Criminal Revision No. 428 of 1999 before the Sessions Judge. The revision was decided by Xth Additional Sessions Judge, Kanpur Nagar, who held that since the complaint was filed prior to expiry of 15 days of the date of notice, it was premature and not maintainable. With these findings he allowed the revision set aside the order of the Additional Chief Metropolitan Magistrate and dismissed the complaint being premature. ( 7 ) THE above order of Additional Sessions Judge has been challenged in this revision. ( 8 ) THE opposite party No. 2 was served with the notice and also filed vakalatnama of Sri Rajendra Kumar Pandey and Dr. Archana Pandey, Advocates, but on the date of hearing none appeared from the side of opposite party No. 2. ( 9 ) HEARD the learned counsel for the applicant and learned A. G. A. and perused the record, as none appeared from the side of opposite party No. 2. ( 10 ) IT was contended by the learned counsel for the applicant that the Additional Sessions Judge allowed the revision and dismissed the complaint simply on the ground that complaint under Section 138 Negotiable Instruments Act was filed premature, prior to expiry of 15 days from the notice. He further contended that Section 138 of Negotiable Instruments Act bars taking of cognizance within 15 days from the date of service of notice, but there is no bar in filing complaint prior to expiry of 15 days, as filing of complaint and taking cognizance are two different stages. In support of his above contention he placed reliance on Apex Court decision in Narsingh Das Tapadia v. Goverdhan Das Partani, (2000) 10 JT (SC) 141. ( 11 ) IN the Narsingh Das case (supra) the respondent borrowed a sum of Rs. 2,30,000. 00 from the applicant and issued a post dated cheque in his favour. When the cheque was presented for payment on 3-10-1994, the same was dishonoured by the Bank on 6-10-1994 due to in-sufficient fund". The appellant demanded accused to repay the amount, vide his telegram sent on 7-10-1994 and 17-10-1994. A notice was also issued to respondent on 19-10-1994 demanding to repay the amount. When the cheque was presented for payment on 3-10-1994, the same was dishonoured by the Bank on 6-10-1994 due to in-sufficient fund". The appellant demanded accused to repay the amount, vide his telegram sent on 7-10-1994 and 17-10-1994. A notice was also issued to respondent on 19-10-1994 demanding to repay the amount. Despite receipt of notice on 26-10-1994, the respondent neither paid the amount, nor gave any reply. The complainant, therefore, filed complaint under Section 138 of Negotiable Instruments Act on 8-11-1994. The Court, however, took cognizance on 17-11-1994. The High Court held that the original complaint having been filed on 8-11-1994 was premature and liable to be dismissed. In appeal, the Apex Court held as below :-"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, the Court may not take cognizance till the time the cause of action arises to the complainant. "taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence, regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156 (3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence. Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-matured, it can await maturity or be returned to the complainant for filing later, and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. If the complaint is found to be pre-matured, it can await maturity or be returned to the complainant for filing later, and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. " ( 12 ) IN this way, the controversy in the case has been finally settled by the Apex Court that in case the complaint is filed prior to expiry of 15 days of the notice, it cannot be said incompetent. The bar of expiry of 15 days is for taking cognizance. In the instant case, though complaint was filed on 26-6-1998 but cognizance was taken on 18-11-1998, which was much after 15 days from the date of notice i. e. 13-6-1998 and therefore, no cognizance was taken within 15 days of the date of notice. The learned Sessions Judge, therefore, wrongly allowed the revision. Thus, the order of learned Additional Sessions Judge cannot be sustained. ( 13 ) THE revision is, accordingly, allowed. The order under revision dated 30-6-2000 passed by Xth Additional Sessions Judge, Kanpur Nagar in Criminal Revision No. 421 of 1998 is quashed and the order of Additional Chief Metropolitan Magistrate dated 8-10-1999 in criminal case No. 861 of 1998 is restored. The Magistrate is directed to proceed with the case in accordance with law. Revision allowed. .