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Rajasthan High Court · body

2001 DIGILAW 1500 (RAJ)

Laxmi Narain v. State of Rajasthan

2001-09-17

K.C.SHARMA

body2001
JUDGMENT 1. - Heard learned Counsel for the petitioners and the learned Counsel for the non-petitioners and perused the order impugned in this petition under Section 482, Cr.P.C. 2. The complainant petitioner (hereinafter to be called as "the petitioner") filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short to be referred to as "the Act") on 1.8.1998 in the Court of Judicial Magistrate (Jr. Dn.) No. 3, Alwar. It was alleged in the complaint that respondents purchased sugar on credit from the petitioner on 15.6.1998, 13.6.1998 and 15.6.1998 for Rs. 55,544.68, 27,848.88 and 27,006.06 respectively, against which the respondent No. 2 issued 4 post-dated cheques for 3.7.1998 and 5.7.1998 drawn on Central Bank of India, Alwar Branch, with the assurance that payment in full and final shall he made on presentation of cheques. The petitioner presented the cheques for encashment, but the same stood dishonoured and the Bank returned the cheques on 6.7.1998 and 7.7.1998 with the remarks of 'insufficiency of funds in the bank accounts of the respondents'. Accordingly, the petitioner gave notices to respondent Nos. 2 and 3 on 17.7.1998 which were received by them on 18.7.1998. Despite notice, the respondents did not make payment of the above cheques within the stipulated period. Ultimately, the petitioner submitted a criminal complaint under Section 138 of the Act. The learned Magistrate after recording statement of Ashok Kumar under Section 200, Cr. P. C. took cognizance of the offence on 2.9.1998. The respondent Nos. 2 and 3 filed an application dated 13.10.1999 in the Court below with the prayer that since the complaint was filed even before the stipulated period of 15 days from the date of service of notice, therefore, the complaint should be dismissed as premature. The learned Magistrate vide impugned order, dismissed the petitioner's complaint only on the ground that no cause of action accrued to the petitioner on the date of filing of the complaint because by that time, the stipulated notice period of 15 days had not completed. Ms. Preeti Sharma, learned Counsel for the petitioner vehemently argued that even if the complaint was premature, the learned Magistrate, once taken cognizance of the offence ought not to have dismissed the complaint. Ms. Preeti Sharma, learned Counsel for the petitioner vehemently argued that even if the complaint was premature, the learned Magistrate, once taken cognizance of the offence ought not to have dismissed the complaint. According to her, even if a complaint is filed prior to the notice period comes to an end, the learned Magistrate should have kept the complaint pending till the stipulated notice period of 15 days is completed. She argued that even if a complaint is filed without disclosing the cause of action in terms of the provisions of Section 138 of the Act, the Court may take cognizance after the cause of action arises to the complainant. In support of her above arguments, learned Counsel has placed reliance on Bhanwar Lal v. State of Rajasthan, 1999 Crl.L.J. 949 , and Narsingh Das Tapadia v. Goverdhan Das Partani, III (2000) CCR 160 (SC)=VI (2000) SLT 523= (2000) 7 SCC 183 . 3. On the other hand learned Counsel for respondent No. 2 has supported the impugned order passed by the learned Court below and has argued that the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. He submitted that in the present case notice was served on the non- petitioners on 18.7.1998 and period of 15 days expired on 2.8.1998, and therefore, the cause of action to file complaint arose only on 3.8.1998. Therefore, the complaint filed before the learned Magistrate was premature and the same has been dismissed rightly. In the circumstances, the High Court should not exercise its inherent powers. He has placed reliance on M/s. Saketh India Ltd. v. M/s. India Securities Ltd., 11(1999) CCR 1(SC) -11 (1999) SI.T 465= AIR 1999 SC 1090 . 4. I have given my thoughtful consideration to the rival contentions. In the instant case, the notices were served on the respondents. On 18.7.1998 and the notice period of 15 days was completed on 2.8.1998, and therefore, the cause of action to file complaint arose to the complainant only on3.8.1998, whereas, they filed the complaint on 1.8.1998. The learned Magistrate, as stated above, took cognizance of the offence on 2.9.1998, but on the application of the respondents dated 13.10.1998 dismissed the complaint on the ground that it was premature. 5. The learned Magistrate, as stated above, took cognizance of the offence on 2.9.1998, but on the application of the respondents dated 13.10.1998 dismissed the complaint on the ground that it was premature. 5. Section 138 of the Act makes the dishonour of a cheque an offence and Clause (c) of Section 138 provides that nothing contained in the section shall apply unless 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 notice. Section 142 of the Act deals with taking cognizance of offence on a complaint being made to the Court. Clause (b) of Section 142 provides that such complaint is made within one month of the date on which the cause of action arises under Clause (c) of proviso to Section 138 of the Act. 6. A perusal of the above provisions makes it emphatically clear that no time limit has been prescribed before which the complainant cannot file a complaint. Only the maximum limit of one month within which the complaint should be filed has been prescribed. In the case in hand the non-petitioners, the drawers of the cheques failed to make the payment of the said amount of money to the petitioners in due course of cheques within 15 days of the receipt of the notices, the complaint of the petitioners was liable to be entertained by the Court below. Section 142(2) of the Act clearly prescribes a period within which the complaint can be filed from the date of cause of action arising under Clause (c) of proviso to Section 138 of the Act. There is no restriction that complaint cannot be filed before the notice period of 15 days has come to an end. The only restriction is that Court cannot take cognizance of the offence till the time the cause of action arises to the complainant in terms of Clause (c) of the proviso to Section 138 of the Act. In Narsingh Das Tapadia's case (supra), their Lordships of the Supreme Court observed as under : "The compliance of Clause (c) of proviso to Section 138 enables the Court to entertain a complaint. In Narsingh Das Tapadia's case (supra), their Lordships of the Supreme Court observed as under : "The compliance of Clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can he filed from the date of the cause of action arising under Clause (c) of the proviso to Section 138. 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." Their Lordships further observed : "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 premature, 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." 7. In the present case, admittedly, the complaint was filed on 1.8.1998 i.e. two days prior to arising cause of action to the petitioners i.e. on 3.8.1998. But the learned Magistrate took cognizance of the offence on 2.9.1998 i.e. after the cause of action arose on 3.8.1998. As per the law laid down by the Apex Court, mere filing of complaint at an earlier date need not necessarily render the complaint liable to be dismissed. Thus, in view of the settled position of law, the Trial Court correctly took cognizance of the offence on 2.9.1998 after cause of action accrued to the petitioner and the complaint could not have been dismissed merely only on the ground that it was filed prior to the accrual of cause of action. 8. The case cited by the learned Counsel for the petitioner being on different footings is not applicable to the facts and circumstances of the present case. 9. From the discussions made above, it must be held that the learned Trial Court had rightly taken cognizance of the oftence on 2.9.1998. However, it has committed serious error in dismissing the complaint subsequently on the application filed by the respondents, holding it to be premature. 9. From the discussions made above, it must be held that the learned Trial Court had rightly taken cognizance of the oftence on 2.9.1998. However, it has committed serious error in dismissing the complaint subsequently on the application filed by the respondents, holding it to be premature. The order impugned, therefore, deserves to be quashed. 10. In the result, this petition under Section 482, Cr.P.C. is allowed. The order dated 25.10.1999 impugned in this petition is quashed and set- aside. The Court below is directed to proceed with the trial of the case in accordance with law, expeditiously.Petition allowed. *******