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2016 DIGILAW 1184 (ALL)

KISHOR KUMAR v. STATE OF U. P.

2016-04-01

SUNEET KUMAR

body2016
JUDGMENT : Suneet Kumar, J. This application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 25.07.2014 passed by A.C.J.M., Court No. 10, in Complaint Case No. 1089 of 2013 (Pradeep v. Kishor Kumar), under Section 138 Negotiable Instrument Act, P.S. Fatehpur Sikri, District Agra, as well as, order dated 27.08.2015 passed by Additional Sessions Judge, Court No. 17, Agra in Criminal Revision No.523 of 2014 (Kishor Kumar v. State of U.P. and others). 2. As per the complaint allegation, it was asserted that the applicant is a contractor in a private firm manufacturing shoes. The applicant approached the complainant demanding Rs. 20,000/- towards loan to be paid for the labour charges. The complainant paid Rs. 16500/- in cash. The sum was returned by the applicant by issuing a cheque of equal sum which was returned by the bank on 28.05.2013 due to insufficient fund. Notice was sent on 04.06.2013 through a counsel, thereafter the complaint was filed on 10.06.2013. 3. Learned Magistrate recorded the statement of the opposite party no. 2 under Section 200 Cr.P.C. On 16.07.2013, thereafter, summoned the applicant on 25.07.2014. The summoning order was assailed in revision being Criminal Revision No. 523 of 2014 which was rejected on 27.08.2013. The applicant is assailing the revisional order arising from the summoning. The sole point pressed by learned counsel for the applicant is that the complaint was instituted within six days from the date of issuance of the notice, hence being premature as 15 days mandatory notice had not lapsed as required under proviso to sub-clause (c) of Section 138 of the Act, therefore the complaint being premature is liable to be rejected. 4. It is also sought to be urged that the cause of action is to be assessed from the date of filing of complaint and not from the date of the summoning order. 5. Learned counsel would submit that the order sheet of the case would reflect that the complaint was instituted on 10.06.2013, the learned Magistrate passed an order that the complaint be registered and the compliant be placed on 16.07.2013 for recording the statement under Section 200 Cr.P.C. The statement under Section 200 Cr.P.C. was recorded on 16.07.2013, upon which, the learned Magistrate summoned the applicant on 25.07.2014. The three-judge Bench of Supreme Court in Yogendra Pratap Singh v. Savitri Pandey and another, (2014) 10 SCC 713 was called upon to consider (i) can cognizance of an offence punishable under Section 138 of Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138. 6. The Court upon reviewing the earlier judgments rendered by the Supreme Court and scanning the judgments rendered by the High Courts answered the reference in para 36 which reads as under :- ".............It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque." 7. Upon answering the question in the negative the consequential question arose as to whether the complainant be permitted to bring the complaint again not notwithstanding the fact that the period of one month stipulated under Section 142 (b) for filing of such a complaint has expired. Upon answering the question in the negative the consequential question arose as to whether the complainant be permitted to bring the complaint again not notwithstanding the fact that the period of one month stipulated under Section 142 (b) for filing of such a complaint has expired. The Court answered the question in para 42, wherein, it is held "...As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly." 8. The crucial date for computing the period of limitation is the date of the filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate (Vide Indra Kumar Patodia v. Reliance Industries Ltd. (2012) 13 SCC 1 ). 9. In view of the binding precedent rendered in Yogendra Pratap Singh (supra), the plea that the complaint being premature as it was instituted before the expiry of clear 15 days notice can be raised by the applicant before the learned Magistrate. 10. The petition is, accordingly, disposed of.