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2012 DIGILAW 1101 (RAJ)

Choudhary Medical Store v. State of Rajasthan

2012-05-02

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant revision has been filed by the petitioner challenging the order dated 22.1.2010 passed by learned District Judge, Merta City in revision whereby he has quashed the order dated 18.2.2008 passed by learned ACJM, Merta in complaint No. 27 of 2008 taking cognizance against the respondent No. 2 for the offence under Section 11 NI Act. 2. The issue involved in the matter as to whether the Magistrate is competent to entertain a complaint, which is filed prematurely. The facts relevant for the disposal of the petition are that the respondent No. 2 issued a cheque of Rs. 6 lakhs to the petitioner-firm. The cheque was dishonoured on 17.5.2007. The registered notice was issued to the respondent No. 2 on 1.6.2007 and was served upon him on 16.7.2007. The petitioner herein is a Firm now represented by the legal representatives of the proprietor, who is expired subsequent to the filing of the present revision. The complaint was filed on 28.7.2007 on behalf of the petitioner-firm. 3. The learned Trial Court took cognizance of the complaint on 18.2.2008. The respondent No. 2 challenged the order taking cognizance by filing a revision and the revisional Court accepted the revision & set aside the cognizance order holding that the complaint was premature because the same was filed prior to the lapse of the period of fifteen days' from the receipt of the notice and therefore, the cognizance was illegal as having being taken on a premature complaint. The order of revisional Court now has been challenged by the complainant by way of the instant petition. 4. Learned counsel for the petitioner placing reliance on the decision of the Apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani & Anr, 2000 (1) ACJ 129 (SC) : 2009 (1) NIJ 40 (SC)[NOC] and two decisions of this Court in the cases of (1) Mahendra Agrawal v. Gopi Ram Mahajan, 2002 (3) CCC 626 (Raj.) & (2) Abdul Mutalib v. State of Rajasthan, S.B. Criminal Misc. Petition No. 175 of 2006 decided on 3.1.2006 : 2006 (2) NIJ 231 (SC) submits that the order of the revisional Court is absolutely illegal. Petition No. 175 of 2006 decided on 3.1.2006 : 2006 (2) NIJ 231 (SC) submits that the order of the revisional Court is absolutely illegal. He argues in this case that the cognizance was taken by the Court much alter the mandatory period of fifteen days' as required in Section 11 of the Neotiable Instruments Act had passed and therefore, the cognizance cannot be said to be taken on a premature complaint. Learned counsel submits that even if the complaint had been filed before the proceedings become mature, the Trial Court could have returned the same back for presentation at a proper time or could have waited for passing of an order of cognizance upon the expiry of the mandatory period of fifteen days'. He submits that the order of the revisional Court is absolutely illegal. 5. Learned counsel appearing for the respondent No. 2 has opposed the arguments advanced and submits that the Apex Court in the case of M/s. Sarav Investment & Financial Consultants Pvt. Ltd. & Anr, v. Llyods Register of Shipping Indian Office Staff Provident Fund & Anr., 2008 (1) WLC (SC) Cri. 19 : 2008 (1) NIJ 14 (SC) has held that the cognizance on a premature complaint is illegal. 6. Having considered the arguments advanced at the bar and upon going through the orders impugned and the judgments referred to above, this Court is of the opinion that a proper consideration of the procedure for entertaining the complaints has to be made for the purpose of clarifying the issue. 7. The presentation of a complaint is done in the registry of the Court and thereafter, the registry is under an obligation to check the complaint and report about the same having been filed within limitation as well as in the correct jurisdiction. If the registry reaches to a conclusion that the complaint has been filed before maturity then the same can be placed before the Magistrate for passing an order to return the same to the complainant to be filed upon maturity. In the alternative, the Magistrate instead of returning the complaint can wait till the complaint becomes mature and the notice period gets over and then can pass the order taking cognizance. In the instant case, the order taking cognizance was passed on 18.2.2008 i.e. much after the maturity period of the notice as prescribed under Section 11 of NI Act. 8. In the instant case, the order taking cognizance was passed on 18.2.2008 i.e. much after the maturity period of the notice as prescribed under Section 11 of NI Act. 8. In view of the above facts and circumstances and on applying the judgments, on which, the learned counsel for the petitioner has placed reliance, this Court is of the opinion that the revisional Court has committed a grave error in setting aside the order taking cognizance. The case of M/s. Sarav Investment & Financial Consultants Pvt. Ltd. & Anr, on which, the learned counsel for the respondent No. 2 has placed reliance the judgment of the Apex Court the case of Narsingh Das was not considered. 9. That apart, the Hon'ble Apex Court in the aforesaid case was considered an issue regarding the effect of the non-service of the statutory notice under Section 11 of the Act on the maintainability of the complaint. The issue of maintainability of a premature complaint was not under consideration in that case. 10. The upshot of the above discussion is that the revision petition succeeds and the order dated 22.1.2010 passed by the Revisional Court quashing the order taking cognizance dated 18.2.2008 is hereby set aside. The complaint is directed to be restored to its original number and thereafter, the Trial Court shall proceed with the same in accordance with law. 11. The revision petition is allowed accordingly. 12. The parties are directed to appear before the concerned Court on 10.7.2012.Revision Petition Allowed. *******