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2008 DIGILAW 427 (JK)

Mehraj-ud-Din Ganai v. Mir Yousuf

2008-11-12

MOHAMMAD YAQOOB MIR

body2008
1. The facts of the case are that the petitioner had issued a cheque bearing no. 156280 dated 30.07.2007 for an amount of Rs. 50,000/- in favour of the respondent. The cheque was dishonoured by the Punjab and Sindh Bank on 16.08.2007 for insufficiency of funds in the account of the petitioner. Faced with this situation, the respondent claimed to have served the notice for demand on 03.09.2007 but without waiting for the stipulated period of 15 days, filed the complaint on 05.09.2007. Learned Magistrate after recording the statement of complainant (respondent) and his one witness, has taken cognizance vide his order dated 05.09.2007.The petitioner (accused) has challenged the proceedings so seeks quashment of the same. 2. The short submission made by learned counsel for the petitioner is that the cause of action for lodging complaint accrues on the expiry of 15 days of Notice for demand. Admittedly, notice has been issued on 03.09.2007, whereas, complaint has been filed on 05.09.2007 so on the face of it complaint was pre-mature. Learned Magistrate has taken cognizance, which is not only illegal but also shows non-application of mind. 3. Learned counsel for the respondent, Mr. Zubair Ahmed, at the time of hearing was not present but subsequently he appeared and made reference to 2000 SLJ page 661 wherein the judgment of Apex Court captioned Narsingh Das Tapadia v/s Goverdhan Das Partani & anr. has been reported. Heard. Considered. 4. The short submission as made by learned counsel for the petitioner on perusal of the record, is found to be genuine, as admittedly notice of demand has been issued on 03.09.2007 and complaint has been filed on 05.09.2007. Filing of the complaint was pre-mature but however, curable, but taking of cognizance is totally illegal. 5. For appreciating the matter in its right perspective, Sub Section (c) of Section 138 and Sections 142 of Negotiable Instruments Act are to be noticed. Filing of the complaint was pre-mature but however, curable, but taking of cognizance is totally illegal. 5. For appreciating the matter in its right perspective, Sub Section (c) of Section 138 and Sections 142 of Negotiable Instruments Act are to be noticed. Section 142 reads as under:- Cognizance of offences: Not withstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974): - (a) no Court shall take cognizance of any offence punishable under Sec. 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 Cl(c ) of the proviso to Sec. 138; [Provided that the cognizance of a complaint may be taken by the court after the prescribed period. If the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Sec. 138. Sub Section (c) of Section 138 provides as follows:- 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. - For the purpose of this section debt or other liability means a legally enforceable debt or other liability." 6. The distinction has to be drawn in filing the complaint and in taking the cognizance. No doubt, complaint is required to be filed only after expiry of 15 days of the notice of demand in terms of Sub Section (c) of Section 138 of Negotiable Instruments Act i.e., within one month thereafter but there is no bar for filing the complaint before the expiry of fifteen days of notice of demand. Pre-mature filing of the complaint is to be taken care of by the trial Magistrate either by returning the complaint for its presentation after the expiry of 15 days or in alternative to keep the complaint pending i.e., process is not to be issued until expiry of the stipulated period. 7. In the judgment Narsing Das Tapadia vs. Goverdhan Das Partani & anr. 7. In the judgment Narsing Das Tapadia vs. Goverdhan Das Partani & anr. cheque was issued, same was presented on 03.10.1994, was dishonoured by the bank on 06.10.1994 due to in-sufficiency of funds. Drawer of the cheque had demanded the accused to pay the amount vide his telegram sent on 07.10.1994 and 17.10.1994. The notice was also issued on 19.10.1994 demanding respondent to pay the amount but respondent despite receipt of the notice 26.10.1994 neither paid the amount nor gave the reply. The complaint was filed on 08.11.1994 but was returned for curing some deficiency then re-filed and the court took cognizance on 17.11.1994. It was held in para 10 of the judgment supra: - 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-mature, 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. 8. In the reported judgment cognizance was taken only after the cause of action had accrued i.e., after the expiry of the notice of demand of payment. It was held that filing of complaint on 08.11.1994 was premature but there is no bar for filing such complaint. The complaint could be kept pending awaiting expiry of the time. Para 7 of the judgment is reproduced herein below:- 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 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 can not 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. 9. No period is prescribed before which the complaint can not 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. 9. In the case in hand non-application of mind is quite evident as the learned Magistrate has taken the cognizance when the same was required to be taken only after the expiry of period of notice of demand, without waiting for the expiry of 15 days, complainant in haste has filed the complaint then Magistrate has also committed illegality by taking the cognizance. Therefore, cognizance taken has to be quashed. 10. By quashing the taking of cognizance it has to be made clear as to what is the next to be done because Negotiable Instruments Act has laudable object of defeating the designs of the cheque cheaters. On the curable technical fault or for the non-application of mind by learned Magistrate or for the haste exhibited by the drawer of the cheque, the drawer cannot be made to suffer and the object of the Act cannot be permitted to be defeated. By quashing the cognizance taken, the accused cannot be absolved therefore, trial Magistrate shall consider the case afresh on the basis of complaint, so lodged, and shall deal with the matter in accordance with Chapter XVI and XVII of the Cr. P.C. Copy of the order be sent to the trial court where the parties shall ensure their presence on 27.11.2008. Petition disposed of on aforesaid terms.