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CASE NO.:

Special Leave Petition (crl.) 1636 of 1999

PETITIONER:

NARSINGH DAS TAPADIA

Vs.

RESPONDENT:

GOVERDHAN DAS PARTANI & ANR.

DATE OF JUDGMENT: 06/09/2000

BENCH:

K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

Leave granted.

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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."

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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@@

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of cheque an offence provides that nothing contained in the@@

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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

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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:@@

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"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

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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.