Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 32 (ALL)

MANI MITTAL v. STATE OF UTTAR PRADESH

2004-01-08

R.L.DASH

body2004
R. K. DASH, J. ( 1 ) IN the instant petition filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioner has prayed for quashing of the complaint case No. 2122 of 1998, filed under Section 138 of Negotiable Instruments Act, police Station Civil Line, district Moradabad. Rajiv Kumar Sharma, respondent No. 3 (hereinafter referred to as the com-plainant) filed a complaint under Section 138 of the Negotiable Instruments Act, (for short the Act) alleging that the petitioner and one Ram Chandra Sharma being the partners of Pacific Exims owned him a sum of rupees six lakhs. They did not discharge their liability and after repeated demands, issued two cheques; one for rupees 75,000. 00 (seventy five ttxund)and arha-fbrru 35,000. 00 (thirty five thousand) on 15/8/1996. He deposited these two cheques in the Bareilly Corporation Bank, Amroha Gate, Moradabad, but those were dishonoured since the drawers had no sufficient amount in their account. However, the cheques were revalidated by the drawers on 25/7/1997, whereafter he deposited the same in his account. Again these two cheques were dishonoured due to insufficient amount in the drawers account. It is the further case of the complainant that on 20/2/1998 he sent a notice by telegram demanding the drawers to make payment within five days and when no payment was made, he filed the complaint under Section 138 of the Act. On being summoned, the peti-tioner moved the court below praying to recall the summoning order. By order dated 1/11/2000, learned 2nd A. C. J. M. , Moradabad rejected the petition holding that he did not have the power to review or recall his own order. In his opinion, the petitioner ought to have approached the High Court under Section 482 of the Code seeking for necessary relief. ( 2 ) THE complainant, on being noticed, filed a short counter affidavit making evasive denial of the averments made in the petition. In his opinion, the petitioner ought to have approached the High Court under Section 482 of the Code seeking for necessary relief. ( 2 ) THE complainant, on being noticed, filed a short counter affidavit making evasive denial of the averments made in the petition. Learned counsel for the petitioner in course of arguments raised the following contentions: (i) that neither the firm nor the petitioner and the co-accused were liable to pay any amount, more particularly the amount as mentioned in two cheques to the complainant; (ii) that validity of the cheques was over on the date of presen-tation in the Bank and those were not revalidated by the drawers; (iii) that complaint was premature in view of the relevant provi-sions of the Act. ( 3 ) LEARNED counsel appearing for the complainant, on the other hand, contended that learned Magistrate upon consideration of the allegations made in the complaint coupled with the statement of the complainant, held that prima fade case under Section 138 of the Act was made out against the petitioner and the co-accused and in that view of the matter, it should be left to the court below to decide culpability or otherwise of accused persons on the basis of the evidence to be adduced during trial. It is further urged that scope and ambit of power of this Court under Section 482 of the code being limited, no interference is called for in the present criminal proceeding in exercise of such power. ( 4 ) AS regards the contentions (i) and (ii) as aforesaid, it may be noted that since the learned Magistrate has only taken cognizance of the offence and trial is yet to commence, the same cannot be gone into and decided in exercise of inherent power conferred by Section 482 of the code. So, I shall confine my finding with regard to contention (iii) and for better appreciation reference may be made to Section 142 of the Act which reads as under: 142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ). So, I shall confine my finding with regard to contention (iii) and for better appreciation reference may be made to Section 142 of the Act which reads as under: 142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ). (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138, (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. ( 5 ) IF a cheque issued for payment of any amount money to discharge in whole or part of any debt or other liability, is returned by the bank unpaid on any of the circumstance mentioned in Section 138 of the Act, the drawer shall be deemed to have committed the offence. Clause (b) of Section 138 makes provision for the payee or holder in due course of the cheque to demand for the payment of the amount by giving a notice within fifteen days of the receipt of the information from the bank concerned about return of the cheque unpaid. Upon such notice, the drawer get 15 days time to make payment of the amount to the payee or holder in due course of the cheque. If the drawer fails to make payment within the notice period, it is only then the payee or the holder of the cheque can put the law into motion by filing a complaint within one month of the expiry of the said period. ( 6 ) IN the present case, it is the version of the complainant that notice by telegram was given on 20. 2. 1998 demanding the drawers for payment of the amount within five days. This cannot be treated as valid notice since, as provided in the Act, upon service of notice by the payee or holder in due course of the cheque, the drawer gets 15 days time to make payment. 2. 1998 demanding the drawers for payment of the amount within five days. This cannot be treated as valid notice since, as provided in the Act, upon service of notice by the payee or holder in due course of the cheque, the drawer gets 15 days time to make payment. Clause (b) of Section 142 of the Act envisages that complaint can be filed within one month of the date on which cause of action arises. In the case on hand, if 20. 2. 1998 is taken as date of receipt of the telegram, 15 days notice period demanding for payment of the amount expired on 7. 3. 1998 and this being the date when the cause of action arose, the complainant could have filed the complaint by 7. 4. 1998, but long before the cause of action i. e. on 28. 2. 1998 he filed the complaint. True it is, the learned Magistrate summoned the petitioner and the co-accused on 16. 5. 1998, but he had taken cognizance of the offence prior to the date when cause of action arose. ( 7 ) WORD cognizance has not been defined in the Code. There are however, several judicial pronouncements of the Apex Court and various High Courts about the meaning of the word cognizance and the expression taking cogni-zance of the offence. Taking cognizance would mean, application of judicial mind to proceed with the case in the manner as contemplated in the Code. It has, however, been held by the Apex Court that taking a decision for directing investi-gation, issuing a search warrant cannot be construed as taken cognizance of the offence. ( 8 ) IN the case of D. Lakshmi Narayana Reddy and other v. V. Narayana Reddy and others, AIR 1976 SC 1673 the Apex Court has interpreted the meaning of taking of cognizance of the offence in the following words: What is meant by taking cogni-zance of an offence by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Section 190 and 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. But from the scheme of the code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Section 190 and 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clause (a), (b) and (c) of Section 190 (1 ). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the parti-cular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate, Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a ). If instead of proceeding under Chapter: XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence. ( 9 ) IN the case on hand, the complaint was filed on 28/2/1998 and on the same day the learned Magistrate recorded the statement of complainant under Section 200 of the Code. So, in view of the law laid down by the Supreme Court in the aforementioned case, I would hold that cognizance of the offence was taken on 28/2/1998. Therefore, the complaint was premature having been filed much before the date when the cause of action arose. ( 10 ) IN view of discussions made above, criminal miscellaneous appli-cation succeeds and is allowed. Impugned complaint being premature is hereby quashed. Petition allowed.