Narsingh
Das Tapadia Vs. Goverdhan Das Partani & ANR [2000] INSC 470 (6 September
2000)
K.T.
Thomas & R.P. Sethi. SETHI,J.
Leave
granted.
L.I.T.J
On proof of charge, the respondent was convicted by the Trial Court under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
"the Act") and sentenced to undergo simple imprisonment for six
months.
His
appeal was dismissed by the Appellate Court confirming the conviction and
sentence passed by the Trial Court.
However,
in revision, the High Court set aside the judgment of the Trial Court as well
as the Appellate Court holding that the complaint filed against the respondent
was pre-mature.
The
facts of the case are that the respondent borrowed a sum of Rs.2,30,000/- from
the appellant and issued a post-dated cheque in his favour. When the cheque was
presented for demand on 3.10.1994, the same was dishonoured by the bank on
6.10.1994 due to "insufficient funds". The appellant demanded the
accused to repay the amount vide his telegrams sent on 7.10.1994 and
17.10.1994. A notice was also issued to the respondent on 19.10.1994 demanding
to repay the amount. Despite receipt of the notice on 26th October, 1994, the respondent neither paid the amount
nor gave any reply. To prove his case, the complainant/ appellant examined
three witnesses and proved documents Exhibits P-1 to P-6. In his statement
under Section 313 of the Cr.P.C. the respondent denied the allegations but
refused to lead any defence evidence. On analysis of the evidence and after
hearing the counsel for the parties, the Trial Court concluded as under:
"The
complainant established that the accused borrowed Rs.2,30,000/- from him and
the accused issued Ex.P3; cheque and the cheque was returned due to
insufficiency of funds and the accused did not repay the amount inspite of
receipt of notice from the complainant and hence the accused is liable for
punishment u/s 138 of N.I. Act." As noticed earlier, the appeal filed by
the respondent was dismissed on 19th April, 1997. The High Court found that as the notice intimating the dishonourment
of cheque was served upon the accused on 26th October, 1994, the
complainant/appellant could not file the complaint unless the expiry of 15 days
period. It was found on facts that the complaint filed on 8.11.1994 was
returned after finding some defect in it. However, when re-filed, the court
took the cognizance on 17.11.1994. The High Court held that the original
complaint having been filed on 8.11.1994 was pre-mature and liable to be
dismissed.
Section
142 of the Act provides: "Cognizance of offences-- 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 proviso 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."
Sub-section (c) of Section 138 which makes the dishonour of cheque an offence
provides that nothing contained in the Section shall apply unless:
"(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.
Explanation--For
the purposes of this section, 'debt or other liability' means a legally
enforceable debt or other liability." 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 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.
"Taking
cognizance of an offence" by the court has to be distinguished from the
filing of the complaint by the complainant. Taking cognizance would mean the
action taken by the court for initiating judicial proceedings against the
offender in respect of the offence regarding which the complaint is filed.
Before it can be said that any Magistrate or Court has taken cognizance of an
offence it must be shown, that he has applied his mind to the facts for the
purpose of proceeding further in the matter at the instance of the complainant.
If the Magistrate or the Court is shown to have applied the mind not for the
purpose of taking action upon the complaint but for taking some other kind of
action contemplated under the Code of Criminal Procedure such as ordering
investigation under Section 156(3) or issuing a search warrant, he cannot be
said to have taken cognizance of the offence [Narayandas Bhagwandas Madhavdas
v. State of West Bengal AIR 1959 SC 1118; and Gopal Das Sindhi & Ors. v.
State of Assam & Anr. AIR 1961 SC 986].
This
Court in Nirmaljit Singh Hoon v. The State of West Bengal & Anr. [1973 (3) SCC 753] observed:"Under Section 190 of the Code of
Criminal Procedure, a Magistrate can take cognizance of an offence, either on
receiving a complaint or on a police report or on information otherwise
received. Where a complaint is presented before him, he can under Section 200
take cognizance of the offence made out therein and has then to examine the
complaint and his witnesses. The object of such examination is to ascertain
whether there is a prima facie case against the person accused of the offence
in the complaint, and to prevent the issue of process on a complaint which is
either false or vexatious or intended only to harass such a person. Such
examination is provided therefore to find out whether there is or not
sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt
of a complaint, may postpone the issue of process and either inquire into the
case himself or direct an inquiry to be made by a Magistrate subordinate to him
or by a police officer for ascertaining its truth or falsehood.
Under
Section 203, he may dismiss the complaint; if, after taking the statement of
the complainant and his witnesses and the result of the investigation, if any,
under Section 202, there is in his judgment 'no sufficient ground for
proceeding'." 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. Again this Court in D.Lakshminarayana Reddy & ors. v. V.
Narayana Reddy & Ors. [AIR 1976 SC 1672] dealt with the issue and observed:
"What
is meant by 'taking cognizance of an offence' by the 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 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 of the offence alleged therein. The ways in which such
cognizance can be taken are set 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 the 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 investigating, or ordering investigation by
the police under Section 156(3), he cannot be said to have taken cognizance of
any offence." In the instant case mere presentation of the complaint on
8.11.1994 when it was returned to the complainant/ appellant on the ground that
the verification was not signed by the counsel, could not be termed to be an
action of the magistrate taking cognizance within the meaning of Section 142 of
the Act. The High Court appears to have committed not only mistake of law but a
mistake of fact as well. No cognizance was taken on 8.11.1994, but the
Magistrate is shown to have applied his mind and taken cognizance only on
17.11.1994. The learned Judge of the High Court, without reference to various
provisions of the Act and the Code of Criminal procedure, wrongly held thus:
"The
date of filing i.e. 8.11.1994 in this case is crucial. The return of the
complaint filed by the respondent to comply with some objections and subsequent
filing on 17.11.1994 in this case does not have any affect.
Therefore,
the complaint is pre-mature and is liable to be dismissed." As the
impugned judgment is based upon wrong assumptions of law and facts, the same is
liable to be set aside.
In
view of what has been stated hereinabove, this appeal is allowed by setting
aside the impugned order, with the result that the conviction of the respondent
under Section 138 of the Act is upheld.
So far
as awarding of sentence is concerned, we are inclined to take a lenient view in
the light of the subsequent developments in the case. The respondent has filed an
affidavit on 24.8.2000 submitting that the appellant has been paid a sum of
Rs.3,94,243.33 which includes the cheque amount and the interest payable
thereon.
In
support of his submission he has filed Annexures R-1 and R-2 along with the
affidavit. Learned counsel for the appellant has admitted the payment of the
amount. Thus, we feel that no useful purpose would be served by sending the
respondent back to jail as the interests of justice would be served by imposing
a penalty of fine alone in the circumstances adverted to above. Accordingly,
upon conviction under Section 138 of the Act, the sentence of imprisonment
awarded to the respondent is substituted with the imposition of fine of Rs.5,000/-
to be deposited within two months. In case the amount of fine is not deposited
within the time specified, the respondent shall suffer imprisonment of three
months in default thereof.
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