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2017 DIGILAW 233 (ALL)

KAMLESH CHAUHAN v. STATE OF U. P.

2017-01-17

MUKHTAR AHMAD

body2017
JUDGMENT Hon’ble Mukhtar Ahmad, J.—This application under Section 482 Cr.P.C has been directed with the prayer to quash the Complaint Case No. 156 of 2009 under Section 138 Negotiable Instruments Act (in short the Act), Police Station Qursi district, Aligarh including the summoning order dated 23.3.2009 passed by the Judicial Magistrate, Court No. 1, Aligarh. Further proceedings of the aforesaid complaint case are also prayed to be stayed. 2. A complaint under Section 138 of the Act was filed by the opposite party No. 2 (Surendra Kumar Gupta) against the applicant on 30.1.2009 alleging that certain Mobile sets were purchased by the applicant and in lieu of payment, two cheques dated 22.11.2008 of amount of Rs. 17,658/- and Rs. 96,628/- respectively were issued by the applicant in favour of opposite party No. 2, which he deposited in his account for encashment on 26.11.2008, were reported to be dishonored on 30.12.2008 with the remark that amount in the account was insufficient and were received back by the applicant on 9.1.2009. It is further alleged that a registered notice dated 14.1.2009 requiring the applicant to pay the amount within 15 days from the date of service of notice was sent to the applicant by opposite party No. 2 through his Advocate which was served on 17.1.2009 but the same was not complied with and lastly, above complaint was filed on 30.1.2009. 3. After recording statement under Sections 200 and 202 Cr.P.C and going through the material available before him the concerned learned Magistrate took cognizance on 23.3.2009 and assailing the complaint as well the order of taking cognizance, this application has been moved. 4. Counter-affidavit and rejoinder-affidavit have been exchanged in this case. 5. I have heard Sri Brij Raj Singh, learned Counsel for the applicant, Sri Akhilesh Srivastava, learned Counsel for the opposite party No. 2 and learned AGA and gone through the record. 6. Learned Counsel appearing on behalf of applicant contended that complaint filed on 30.1.2009 was pre-mature as the period specified under Section 138-C of the Act i.e. 15 days had not expired from the date of service of notice. 6. Learned Counsel appearing on behalf of applicant contended that complaint filed on 30.1.2009 was pre-mature as the period specified under Section 138-C of the Act i.e. 15 days had not expired from the date of service of notice. As such, the complaint was liable to be dismissed as not maintainable and the question of summoning the accused person was not there, whereas the contention of learned Counsel for the opposite party No. 2 is that a complaint could be filed even before expiry of 15 days period which was taken on 23.3.2009 in this case as such, no illegality can be attributed to the cognizance order in view of law laid down by the Apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani, 2001 (42) ACC 159, which was prevailing at that time. 7. Having heard learned Counsel for the parties and after going through record, this Court is of the view that the fate of this case would not depend on the law propounded by Apex Court in the case of Narsingh Das Tapadia (supra) as expressly been over ruled by the Apex Court in the case of Yogendra Pratap Singh v. Savitri Pandey, AIR 2015 (SC) 157 . The Apex Court in the case of Narsingh Das Tapadia (supra) was considering the meaning of expression “ taking cognizance of offence”, held that mere presentation of complaint in the Court cannot be held to mean that its cognizance has been taken by Magistrate. If the complaint is found to be pre- mature, it can wait maturity or complaint be returned to the complainant for filing later and its mere presentation at an early date need not necessarily renders the complaint liable to be dismissed or confer any right upon the accused to absolve himself from criminal liability for the offence committed. 8. If the complaint is found to be pre- mature, it can wait maturity or complaint be returned to the complainant for filing later and its mere presentation at an early date need not necessarily renders the complaint liable to be dismissed or confer any right upon the accused to absolve himself from criminal liability for the offence committed. 8. Thus taking queue from the decision of Apex Court in the case of Narsingh Das Tapadia (supra) various High Courts have been taking view that even though, a complaint under Section 138 of the Act was not maintainable, as on the date on which, it was filed on the ground that period of 15 days from the date of expiry of notice as indicated in Section 138-C of the Act had not expired, yet if cognizance is taken after the expiry of aforesaid period, no illegality/impropriety could be said to have been committed by the Magistrate in taking cognizance upon such complaint. In the case of Yogendra Pratap Singh (supra) against the aforesaid chronology, the following two issues were referred. (I) Can cognizance of an offence punishable under Section 138 of the 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(c) of the Act aforementioned ? And, (II) If answer to question No. 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired ? The aforesaid reference came to be answered in the following paragraphs; “32. And, (II) If answer to question No. 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired ? The aforesaid reference came to be answered in the following paragraphs; “32. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. [19] wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented 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; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank; (iv) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 33. We are in agreement with the above analysis. 34. In K.R. Indira[20], a two-Judge Bench of this Court observed that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied. 35. Insofar as the present reference is concerned, the debate broadly centers around clause (c) of the proviso to Section 138 of the NI Act. 34. In K.R. Indira[20], a two-Judge Bench of this Court observed that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied. 35. Insofar as the present reference is concerned, the debate broadly centers around clause (c) of the proviso to Section 138 of the NI Act. The requirement of clause (c) of the proviso is that the drawer of the cheque must have failed to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. Clause (c) of the proviso offers a total period of 15 days to the drawer from the date of receipt of the notice to make payment of the cheque amount on its dishonour. 36. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines ‘complaint’. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. 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. 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. 37. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd.19 and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act. 38. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia1 and so also the judgments of various High Courts following Narsingh Das Tapadia1 that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused the same is premature and if on the date of taking cognizance a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. 39. Rather, the view taken by this Court in Sarav Investment and Financial Consultancy2 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. 40. Our answer to question (i) is, therefore, in the negative. 41. The other question is that if the answer to question (i) is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired. 42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). 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”. 9. In view of above position, which now emerges is that a complaint cannot be entertained against the drawer of the cheque before expiry of 15 days from the date of receipt of notice under Section 138(c) of the Act, because the drawer/accused cannot be said to have committed any offence till then; Narsingh Das Tapadia (supra) was expressly over ruled and it has been held that if complaint is being dismissed as pre mature, the payee or holder is at liberty to file fresh complaint within a month from the date of decision in the criminal case and delay shall be deemed to have been condoned under Section 142(b) of the Act. The Apex Court further had made clear that complainant cannot be permitted to present the same complaint at later stage and with a remedy to file fresh complaint. 10. In view of discussion made above, the complaint under Section 138 of the Act filed on 30.1.2009 on the basis of notice dated 14.1.2009 served on 17.1.2009 was not legally maintainable as the period of 15 days after service of notice of demand under Section 138(c) of the Act, which was essential for accruing the cause of action had not expired. Consequently, the complaint itself and the order of taking cognizance dated 23.3.2009 cannot sustain and the proceedings thereof are also liable to be quashed. 11. This application is accordingly, succeeds and is hereby allowed. The proceedings of Complaint Case No. 156 of 2009 (Surendra Kumar Gupta v. Kamlesh Chauhan) pending in the Court of Judicial Magistrate Court No. 1, Aligarh are hereby quashed. 11. This application is accordingly, succeeds and is hereby allowed. The proceedings of Complaint Case No. 156 of 2009 (Surendra Kumar Gupta v. Kamlesh Chauhan) pending in the Court of Judicial Magistrate Court No. 1, Aligarh are hereby quashed. It would however, be open to the opposite party No. 2 to file fresh complaint in accordance with law. It is made clear that this Court has not adjudicated the claim of either of the parties on merits.