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Uttarakhand High Court · body

2009 DIGILAW 581 (UTT)

RAM PRASAD DANGWAL v. STATE OF UTTARAKHAND

2009-11-26

ALOK SINGH

body2009
JUDGMENT Hon’ble Alok Singh, J. : Mr. Lokendra Dobhal, learned counsel for the revisionist. 2. Mr. S.S. Adhikari, learned Assistant government Advocate for the State of Uttarakhand on behalf of respondent no. 1. 3. Mr. Pawan Mishra, learned counsel for the respondent no. 2. 4. By way of this revision, revisionist is challenging the order passed by Additional Sessions Judge/Special Judge CBI/Anti Corruption, Uttarakhand, Dehradun dated 24.08.2001 whereby learned first Revisional Court allowed the revision of the complainant/respondent herein. 5. Brief facts of the case are that complainant/respondent herein filed a complaint under section 138 of Negotiable Instruments Act, 1881 before Chief Judicial Magistrate on 31.07.1998 which was transferred to the Court of Judicial Magistrate I, Dehradun. On 31.08.1998 learned Judicial Magistrate I Dehradun recorded statement of the complainant under section 200 of Cr.P.C.. Vide order dated 17.03.1999 learned Judicial Magistrate I, Dehradun took cognizance of the matter and directed to summon the accused/revisionist herein. 6. Having received the summon the accused/revisionist herein moved an objection/application to recall the summoning order in the light of judgment of Hon’ble Apex Court in the case of K.M. Mathew vs. State of Kerala and another reported in 1992 (1) SCC 217. 7. Learned Judicial Magistrate allowed the application and recalled summoning order dated 17.03.1999 vide order dated 31.07.2000. Learned Trial Court observed that cheque was dishonoured for want of sufficient fund. Statutory notice was sent by registered post on 02.07.1998. On the notice, Postal Department reported that despite going repeatedly accused/revisionist herein not met. Last report was of dated 20.07.1998, hence, cause of action would arise only on 05.08.1998 on the Magistrate since complaint was filed on 31.07.1998 before the expiry of fifteen days from the date of service of notice, hence, complaint was premature and was not maintainable. 8. Feeling aggrieved from the order dated 31.07.2000 complainant/respondent herein preferred criminal revision no. 162 of 2000 in the court of Sessions Judge which was transferred and heard by learned Additional Sessions Judge, Dehradun (hereinafter referred to as Revisional Court). The Revisional Court observed that notice would be deemed to have been served on the accused on 20.07.1998. It was further observed that complaint was filed on 31.07.1998 and the same was transferred to the court of Judicial Magistrate I. Trial court for the first time recorded the statement of the complainant under Section 200 Cr.P.C. on 31.08.1998. The Revisional Court observed that notice would be deemed to have been served on the accused on 20.07.1998. It was further observed that complaint was filed on 31.07.1998 and the same was transferred to the court of Judicial Magistrate I. Trial court for the first time recorded the statement of the complainant under Section 200 Cr.P.C. on 31.08.1998. Hence, 31.08.1998 would be date of cognizance. Learned Revisional Court has held that in view of section 142 of Negotiable Instruments Act, 1881 date of filing of complaint is not important. Date when cognizance was taken by the learned Magistrate is relevant. Having recorded above findings, Revision was allowed by the impugned order dated 24.08.2001. 9. Mr. Lokendra Dobhal, learned counsel for the revisionist/accused vehemently argued that if notice was served on 20.07.1998, hence, cause of action would arise on expiry of 15 days i.e. on 05.08.1998. Hence, complainant filed on 31.07.1998 prior to 05.08.1998 was premature and was not maintainable. Mr. Dobhal has placed reliance in the matter of M/s. Saketh India Ltd. Vs. M/s India Securities Ltd. reported in 1999 (39) ACC 119. 10. Second point raised by Mr. Dobhal is that order was passed by learned Magistrate would amount to acquittal. Hence, revision before Revisional Court was not maintainable rather appeal under section 378(4) of the Code should have been preferred. 11. Now first question before this court is as to whether date of filing of complaint i.e. 31.07.1998 is relevant or date of taking cognizance by the Magistrate is relevant. 12. For the purpose of deciding the question of maintainability of the complaint I would like to refer two provisions of Negotiable Instruments Act, 1881 sections 138 and 142 which read as under : “138. Dishonour of cheque for insufficiency, etc. 12. For the purpose of deciding the question of maintainability of the complaint I would like to refer two provisions of Negotiable Instruments Act, 1881 sections 138 and 142 which read 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 hole 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 extend to one year, or with fine which may extend to twice the amount of the cheque or with both. Provided that nothing contained in this section apply unless – a. the cheque has been present to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; b. the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 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. 142. Cognizance of offence – 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. 142. Cognizance of offence – 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 provision 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.” 13. From the perusal of section 138 of Negotiable Instrument Act, 1881 I find that cause of action shall arise in favour of the complainant only on expiry of 15 days from the date of service of notice and not before 15 days. However, as per section 142 of the Negotiable Instruments Act, 1881 cognizance shall be taken on the complaint if complaint is filed within one month on the date on which cause of action arises. From perusal of section 142 it can be said that no period is prescribed before which complaint cannot be filed. The only embargo put by section 142 is that no Court shall take cognizance on the complaint unless complaint is made within one month from the date on which cause of action arises. Even if complaint is filed prior to date of cause of action same cannot be thrown out cognizance thereon can be taken on or after fifteen days from the date of service of statutory notice. 14. Hon’ble Apex Court in the case of Narsingh Das Tapadia Vs. Goverdhan Das reported in 2000 (7) SCC page 183 in para 7 and 10 has held as under : “7. The compliance of clause (c) of proviso of 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. The compliance of clause (c) of proviso of 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 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. 10. 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. Again this court in Devarapalli Lakshinarayana Reddy Vs. N. Narayana Reddy dealt with the issue and observed : What is meant by ‘taking cognizance of an offence’ by a 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 of Chapter XIV under which sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance can be taken are asset out in clauses (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 particular 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 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). Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and 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 investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.” 15. From the perusal of the complaint and judgment of Narsingh Das (supra) I find that Revisional Court has not committed any illegality in allowing the revision. 16. Judgment cited by Mr. Lokendra Dobhal, in the matter of M/s. Saketh Industries Ltd. (supra) does not help him. In the matter of M/s. Saketh Industries Ltd. (supra) Hon’ble Apex Court was dealing with the question as to whether complaint is barred by time being presented after expiry of 30 days of the date on which cause of action arises. Dealing with that question Hon’ble Apex Court has held that date on which notice is served shall be excluded for the purposes of counting 30 days. The issue involved before the Hon’ble Apex Court in the matter of Narsingh Das was not involved in the case M/s Saketh India Limited. 17. Second argument of Mr. Lokendra Dobhal is that revision was not maintainable only appeal could have been filed under section 378 (4) of the Code. According to Mr. Lokendra Dobhal order passed by the Magistrate would amount to acquittal. 18. Learned Magistrate recalled its summoning order probably by placing reliance on earlier judgment of Hon’ble Apex Court in the matter of K.M. Mathew vs. State of Kerala and another reported in 1992 (1) SCC 217. Argument of Mr. Lokendra Dobhal need not be dealt with in view of judgment of Hon’ble Apex Court in the matter of Adalat Prasad vs. Rooplal Jindal and others reported in 2004 (7) SCC page 338. Judgment in the matter of K.M., Mathew vs. State of Kerala (supra) was overruled by the Hon’ble Apex Court in the judgment passed in the case of Adalat Prasad Vs. Rooplal Jindal and others. It is now settled law that against the summoning order no recall application is maintainable. Judgment in the matter of K.M., Mathew vs. State of Kerala (supra) was overruled by the Hon’ble Apex Court in the judgment passed in the case of Adalat Prasad Vs. Rooplal Jindal and others. It is now settled law that against the summoning order no recall application is maintainable. Magistrate had no jurisdiction to recall its own summoning order on this score also order to learned Magistrate recalling the summoning order was without jurisdiction and was bad in law. 19. In view of the above discussion I do not find any jurisdictional error, infirmity or illegality committed by the learned Sessions Judge/Revisional Court. No interference is called for. Revision is dismissed. No order as to costs.