Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 244 (MP)

Prashant M. Aachawal v. Gulab Singh Raghuvanshi

2007-02-28

B.M.GUPTA

body2007
ORDER 1. The instant petition has been filed for invoking the inherent powers of this Court under section 482 of CrPC praying therein to set aside the impugned order dated 14.11.2006 passed by Second Additional Sessions Judge (Fast Track Court), Vidisha in Criminal Revision No. 130/06 whereby the learned Judge has affirmed the order dated 19.7.2006 passed by JMFC Vidisha in Criminal Case No. 1413/06. Vide the aforementioned orders, both the Courts below did not allow the contention raised on behalf of the petitioner, that the complaint filed by the respondent for the offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as the Act) is pre-mature. 2. During the course of arguments Shri Bhagwan Pandey, the learned counsel for the petitioner has drawn attention on para 5 of the complaint dated 28.11.2005, the application dated 22.4.2006 filed by the petitioner before the trial Court and the reply dated 16.6.2006 of this application submitted by the respondent and has submitted that in reply, this fact has been admitted by the respondent, that the second notice issued by him was served on petitioner on 21.11.2005 and thereafter he has filed the complaint on 29.11.2005. In view of this he submits that before expiry of period of 15 days as prescribed under section 138 of the Act, the complaint has been filed. Hence, it is pre-mature. He has further submitted that the judgment delivered by the apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani and another [2000 (3) MPLJ 531], which has been cited by the learned Judge in the impugned order, has different facts. In that case, the Court was specifically requested by the complainant to wait for taking cognizance, as a requisite time of 15 days was not expired. 3. Clause (c) of the proviso of section 138 and Clause (b) of section 142 of the Act are relevant and required to be perused, which are as under: "138. In that case, the Court was specifically requested by the complainant to wait for taking cognizance, as a requisite time of 15 days was not expired. 3. Clause (c) of the proviso of section 138 and Clause (b) of section 142 of the Act are relevant and required to be perused, which are as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account :-- where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless -- (a)............. . (b)............. . (c) 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 said notice. Explanation :--............... 142. Cognizance of offences :-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -- (a)............. (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 : (Provided ...............) (c) ......................." (Emphasis supplied) 4. The controversy as raised by Shri Pandey on behalf the petitioner has been completely answered by the apex Court in the judgment delivered in Narsingh Das Thapadia (supra). The controversy as raised by Shri Pandey on behalf the petitioner has been completely answered by the apex Court in the judgment delivered in Narsingh Das Thapadia (supra). It is observed by the apex Court in para 7, 9 and 11 of the judgment that - The compliance of clause (c) of the proviso to section 138 of the Negotiable Instruments Act, enables the Court to entertain a complaint under section 138 of the Act. Clause (b) of section 142 of the Act prescribes the period within which the complaint can be 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 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. 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. 5. As observed by the Court below in para 8 of the impugned order the requisite time of 15 days expired on 5th of December, 2005 and cognizance has been taken on 15th December 2005. Thus, it is rightly observed that the complaint does not suffer on the ground of its prematurity. Because the period of 15 days was expiring on 5th of December, 2005 and cognizance was taken after that period i.e. on 15th December, 2005. Filing of this complaint is a different stage than taking the cognizance by the Court. When judicial mind is applied by a Magistrate for taking further steps in the case, it can be said that the cognizance has been taken. Filing of this complaint is a different stage than taking the cognizance by the Court. When judicial mind is applied by a Magistrate for taking further steps in the case, it can be said that the cognizance has been taken. Earlier it has been observed by the apex Court in Krishna Pillai v. T.A. Rajendran and another [1990 (Supp) SCC 121] when referring the judgment of 5 Judges Bench of the apex Court in A.R. Antulay v. Ramdas Sriniwas Nayak [ (1984) 2 SCC 500 ] in para 4 it is mentioned: "Taking cognizance has assumed a special meaning in our criminal jurisprudence. We may refer to the view taken by a five Judge Bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak At p. 530 (para 31) of the reports this Court indicated: "When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to section 200 CrPC. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicially determine whether a case is made out for issuing process. When it is said that Court issued process, it means the Court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the Court." The extract from the Constitution Bench judgment clearly indicates that filing of a complaint in Court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint." As observed by the Court below in para 8 of the impugned order that cognizance was taken on 15.12.2005. Copies of the order sheets of the trial Court have not been filed by which, it could have been assessed as to after filing of the complaint what steps were taken by the learned Magistrate in the complaint for taking the cognizance. In absence of documents, the observation of the learned Judge in para 8 it can be accepted. As argued, when the notice was served to the petitioner on 21.11.2005, the period of 15 days expires much before 15.12.2005 when the cognizance was taken. In absence of documents, the observation of the learned Judge in para 8 it can be accepted. As argued, when the notice was served to the petitioner on 21.11.2005, the period of 15 days expires much before 15.12.2005 when the cognizance was taken. Thus as observed by apex Court in aforementioned judgment of Narsingh Das thapadi, the contention of the petitioner appears, having no force. While following the aforementioned judgment of the Supreme Court one another Bench of this Court in Babulal v. Kripachand Jain [2003 (2) Vidhi Bhasvar 84 = 2003 (3) MPLJ 66 ] has taken the similar view on similar facts. 6. Consequently, petition being devoid of merits, is dismissed at this stage of admission.