Research › Search › Judgment

Karnataka High Court · body

2001 DIGILAW 519 (KAR)

ISHWAR RAMA GUNAGA v. RAMDAS ANANT PRABHU

2001-07-09

G.PATRI BASAVANA GOUD

body2001
G. PATRI BASAVANA GOUD, J. ( 1 ) THE appellant-complainant is aggrieved by the order of the learned judicial Magistrate First Class, Kumta, dated 25-4-2001, in C. C. No. 1928 of 1996, by which, the respondent-accused has been acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('act' for short ). ( 2 ) THE appellant-complainant presented, on 31-10-1994 to the Bank for encashment, a cheque allegedly issued by the respondent in his favour for a sum of Rs. 35,000/ -. On 3-11-1994, the appellant-complainant received intimation regarding its dishonour. On 14-11-1994, he issued notice to the respondent-accused demanding payment of the amount. The said notice was served on the respondent-accused on 2-12-1994. The appellant-complainant filed a complaint under Section 200 of the Criminal procedure Code on 12-12-1994. The learned Magistrate took cognizance on the same day, i. e. , on 12-12-1994, recorded the sworn statement, found sufficient ground to proceed, and directed issuing of process for the offence under Section 138 of the Act, in answer to which, the respondent appeared and, after recording of the plea, both went to trial, and it is thereafter that the respondent-accused has come to be acquitted by the impugned judgment and order, mainly on the ground that the complaint was premature. ( 3 ) EVEN after hearing Sri Jalisatgi, the learned Counsel for the complainant -appellant at length, I am of the opinion that, the complaint was in fact a premature one, and as such, there was no alternative for the learned Magistrate at that stage, but, to acquit the accused. ( 4 ) WHERE a cheque is dishonoured, clause (b) of the proviso to Section 138 of the Act requires that the complainant should make a demand for payment of the amount of money covered by the cheque by giving a notice in writing to the accused, within 15 days of receipt of information by the complainant from the Bank regarding the return of cheque as unpaid. Accordingly, the intimation from the Bank regarding the dishonour having been received by the complainant on 3-11-1994, the complainant gave such a notice under clause (b) of the proviso to Section 138 of the Act on 14-11-1994. Accordingly, the intimation from the Bank regarding the dishonour having been received by the complainant on 3-11-1994, the complainant gave such a notice under clause (b) of the proviso to Section 138 of the Act on 14-11-1994. Clause (c) of the said proviso enabled the accused to make payment of the said amount, i. e. , the amount covered by the cheque, within 15 days of receipt of the said notice, and it is only on his failure to do so that the offence would be committed, and the cause of action for filing of the complaint arises. The notice having been served on 2-12-1994 on the respondent-accused, the respondent-accused had 15 days time therefrom to make payment. Until the expiry of the said 15 days, it could not have been said that an offence under Section 138 of the Act has been committed, and that cause of action had arisen for the complainant to prefer complaint under Section 200 of the criminal Procedure Code alleging commission of the said offence, In fact, clause (a) of Section 142 of the Act mandates that notwithstanding anything contained in Criminal Procedure Code, no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, made in writing by the payee or as the case may be, by the holder of the cheque in due course, and clause (b) mandates that no Court shall take cognizance unless 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 of the Act. Two conditions are, therefore, necessary for the Court to take cognizance of the offence under Section 138 of the Act. The first condition is that, there should be a written complaint by the payee, or by the holder of the cheque in due course, and the second condition is that, such complaint should have been filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Cause of action under clause (c) of the proviso to Section 138 of the Act arises on expiry of 15 days from the date of service of notice of demand issued under clause (b) of the said proviso, on the accused. Cause of action under clause (c) of the proviso to Section 138 of the Act arises on expiry of 15 days from the date of service of notice of demand issued under clause (b) of the said proviso, on the accused. From the above, it is evident that the notice issued under clause (b) of the proviso to Section 138 of the Act in this case having been served on the respondent-accused on 2-12-1994, the respondent ,had still 15 days to pay the amount and avoiding committing of offence under Section 138 of the Act, thereby avoiding prosecution therefor. Any complaint filed before the cause of action arose, would not only be premature, but no Court could have taken cognizance thereon in view of section 142 of the Act. It is in such circumstances that the Supreme court in Narsingh Das Tapadia v Goverdhan Das Partani and Another, observed that, even if a complaint is a premature complaint, still it can await maturity, or it can be returned to the complainant for filing it 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. On the facts of the case being dealt with by the Supreme court, though the complaint was presented prematurely, cognizance was taken after the cause of action arose under clause (c) of the proviso to Section 138 of the Act and before the time-limit provided under clause (b) of Section 142 of the Act. Sri Jalisatgi, learned Counsel for the complainant -appellant urges that, it is a mandate by the Supreme Court that where a complaint is presented prematurely, the Magistrate is duty-bound to return it. In my opinion, there is no such mandate, and. the decision of the Supreme Court cannot be understood in that sense. If the Magistrate returns the complaint on the ground that it is premature, and asking the complainant to present it after the cause of action arises, it is well and good. But, it is not obligatory on the part of the magistrate to do so, and any failure on the part of the Magistrate in that regard cannot be made use of to his advantage by the complainant. But, it is not obligatory on the part of the magistrate to do so, and any failure on the part of the Magistrate in that regard cannot be made use of to his advantage by the complainant. It is for the complainant to present his complaint on the date on which it has to be presented in accordance with law. If he presents it prematurely, he cannot expect the Magistrate to do the duty which is that of the complainant himself, more so when, in a case like the one concerned herein, on the very day the complaint is presented, the complainant invites the learned Magistrate to apply his mind and to take cognizance. In view of the above, I have to conclude that the complaint was premature, and the learned Magistrate, at that stage of the proceeding, had no alternative, but, to acquit the accused. Appeal dismissed. --- *** --- .