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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2012
(Arising out of SLP (Crl.) No.5761 of 2010)
Yogendra Pratap Singh …Appellant
Versus
Savitri Pandey & Anr. …Respondents
J U D G M E N T
1. Leave granted.
2. This appeal assails an order passed by the High Court
whereby it has allowed a petition under Section 482 of the Cr.P.C.
and quashed the order passed by the Magistrate taking cognizance
of an offence punishable under Section 138 of The Negotiable
Instruments Act, 1881. The following two questions arise for
consideration:
(i) Can cognizance of an offence punishable under
Section 138 of the Negotiable Instruments Act 1881 be
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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?
3. The questions arise in the following factual backdrop:
The appellant filed a complaint under Section 138 of the Negotiable
Instruments Act against respondent No.1 Smt. Savitri Pandey in the
Court of Additional Civil Judge (J.D.)/Magistrate, Sonbhadra in the
State of Uttar Pradesh. The respondent’s case was that four
cheques issued by the accused-respondent in his favour were
dishonoured, when presented for encashment. A notice calling upon
the respondent-drawer of the cheque to pay the amount covered by
the cheques was issued and duly served upon the respondent as
required under Section 138 (c) of The Negotiable Instruments Act,
1881. No payment was, however, made by the accused till 7
th
October, 2008 when a complaint under Section 138 of the Act
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aforementioned was filed before the Magistrate. Significantly
enough the notice in question having been served on 23
rd
September, 2008, the complaint presented on 7
th
October, 2008
was filed before expiry of the stipulated period of 15 days. The
Magistrate all the same took cognizance of the offence on 14
th
October, 2008 and issued summons to the accused, who then
assailed the said order in a petition under Section 482 of the
Cr.P.C. before the High Court of Judicature at Allahabad. The High
court took the view that since the complaint had been filed within
15 days of the service of the notice the same was clearly premature
and the order passed by the Magistrate taking cognizance of the
offence on the basis of such a complaint is legally bad. The High
Court accordingly quashed the complaint and the entire
proceedings relating thereto in terms of its order impugned in the
present appeal.
4. We have heard learned counsel for the parties at some
length. Section 138 of the Negotiable Instrument Act, inter alia,
provides:
“where any cheque drawn by a person on an account
maintained by him with a banker for payment of any
amount of money to another person from out of that
account for the discharge, in whole or in part, of any
debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that 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
that bank, such person shall be deemed to have
committed an offence and shall without prejudice to
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any other provisions of this Act, be punished with
imprisonment for a term which may extend to two
year, or with fine which may extend to twice the
amount of the cheque, or with both.”
5. Proviso to Section 138, however, is all important and
stipulates three distinct conditions precedent, which must be
satisfied before the dishonour of a cheque can constitute an offence
and become punishable. The first condition is that the cheque
ought to have 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. The second condition is that the
payee or the holder in due course of the cheque, as the case may
be, ought to make a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the cheque,
within thirty days of the receipt of information by him from the
bank regarding the return of the cheque as unpaid. The third
condition is that the drawer of such a cheque should have failed to
make 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. It is only upon the
satisfaction of all the three conditions mentioned above and
enumerated under the proviso to Section 138 as clauses (a), (b)
and (c) thereof that an offence under Section 138 can be said to
have been committed by the person issuing the cheque.
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6. Section 142 of the Negotiable Instruments Act governs taking
of cognizance of the offence and starts with a non-obstante clause.
It provides that 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 and 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. In terms of sub-section (c) to Section 142, no court
inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the first class is competent to try any offence punishable under
Section 138.
7. A conjoint reading of Sections 138 and 142 makes it
abundantly clear that a complaint under Section 138 can be filed
only after the cause of action to do so accrues to the complainant
in terms of clause (c) of the proviso to Section 138 which as
noticed earlier happens only when the drawer of the cheque in
question fails to make the payment of the cheque amount to the
payee or the holder of the cheque within 15 days of the receipt of
the notice required to be sent in terms of clause (b) to the proviso
to Section 138.
8. The upshot of the above discussion is that a complaint filed in
anticipation of the accrual of the cause of action under clause (c) of
the proviso to Section 138 would be a premature complaint. The
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complainant will have no legal justification to file such a complaint
for the cause of action to do so would not accrue to him till such
time the drawer of the cheque fails to pay the amount covered by
the cheque within the stipulated period of 15 days from the date of
the receipt of the notice. It follows that on the date such a
premature complaint is presented to the Magistrate the same can
and ought to be dismissed as premature and hence not
maintainable. That is, however, not what happened in the case at
hand. In the present case, the Magistrate took cognizance of the
offence on 14
th
October, 2008 by which time the stipulated period
of 15 days had expired but no payment towards the cheque
amount was made to the complainant even upto the date the
cognizance was taken. The commission of the offence was thus
complete on the date cognizance was taken, but the complaint on
the basis whereof the cognizance was taken remained premature.
9. The question in the above backdrop is whether the
subsequent development namely completion of the third
requirement for the commission of an offence under Section 138
could be taken note of for purposes of cognizance under Section
142 of the Act. The complaint filed by the appellant was in our view
plainly premature. The fact that subsequent to the filing of the
complaint an offence under Section 138 had been committed was
no reason for the court to ignore the fact that the complaint on the
basis of which it was taking cognizance of the offence was not a
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valid complaint. We say so because Section 142 of the Negotiable
Instruments Act forbids taking of cognizance of any offence
punishable under Section 138 except upon a complaint, in writing,
made by the payee or the holder of the cheque in due course.
Such a complaint in order to be treated as a complaint within the
contemplation of Section 142 ought to be a valid complaint. This in
turn means that such a complaint must have been filed after the
complainant had the cause of action to do so under clause (c) of
the proviso to Section 138. A complaint, that is, premature was no
complaint in the eyes of law and no cognizance could be taken on
the basis thereof.
10. Having said that, we must refer to two decisions of this Court
that were cited at the Bar by learned counsel for the parties in
support of their respective submissions. In Narsingh Das
Tapadia v. Goverdhan Das Partani and Anr. (2000) 7 SCC
183, a similar question arose before a two-Judge Bench of this
Court. That was also a case where on the date the complaint was
filed the complainant had no cause of action but by the time
cognizance of the offence was taken by the Magistrate, the
stipulated period of 15 days had expired and the commission of the
offence was complete. This Court drew a distinction between
“taking cognizance of an offence” and ”the filing of a complaint by
the complainant”. This Court held that while there was a bar to the
taking of a cognizance by the Magistrate, there was no bar to the
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filing of a complaint and that a complaint filed even before the
expiry of the period of 15 days could be made a basis for taking
cognizance of the offence provided cognizance was taken after the
expiry of the said period. This Court observed:
“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
premature, 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.”
11. The other decision pressed into service before us was also
delivered by a two Judge Bench of this Court in Sarav Investment
& Financial Consultancy Private Limited and Another v. Llyod
Register of Shipping Indian Office Staff Provident Fund and
Anr. (2007) 14 SCC 753. There this Court held that Section 138
of the Negotiable Instruments Act contains a penal provision and
creates a vicarious liability. Even the burden of proof to some
extent is on the accused. Having regard to the purport of the said
provision and the severe penalty sanctioned by it, the same
warrants a strict construction. The Court further held that service
of a notice in terms of Section 138 proviso (b) of the Act is a part of
the cause of action for lodging the complaint under Section 138 and
that service of a notice under clause (b) of the proviso to Section
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138 was an essential requirement to be complied with before a
complaint could be filed.
The Court observed:
“16. Section 138 of the Act contains a penal provision.
It is a special statute. It creates a vicarious liability.
Even the burden of proof to some extent is on the
accused. Having regard to the purport of the said
provision as also in view of the fact that it provides for
a severe penalty, the provision warrants a strict
construction. Proviso appended to Section 138 contains
a non obstante clause. It provides that nothing
contained in the main provision shall apply unless the
requirements prescribed therein are complied with.
Service of notice is one of the statutory requirements
for initiation of a criminal proceeding. Such notice is
required to be given within 30 days of the receipt of the
information by the complainant from the bank
regarding the cheque as unpaid. Clause (c) provides
that the holder of the cheque must be given an
opportunity to pay the amount in question within 15
days of the receipt of the said notice. Complaint
petition, thus, can be filed for commission of an offence
by a drawee of a cheque only 15 days after service of
the notice. What are the requirements of service of a
notice is no longer res integra in view of the recent
decision of this Court in C.C. Alavi Haji v. Palapetty
Muhammed”
12. It follows that a complaint filed before the expiry of the
stipulated period of 15 days was not a valid complaint for purposes
of Section 142 of the Act. To that extent, therefore, the view taken
in the two decisions referred to above are at variance with each
other. That apart, the decision in Narsingh Das Tapadia (supra)
does not, in our opinion, correctly state the legal position and may
require a fresh look by a larger Bench of this Court. The cleavage in
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the judicial opinion on the question does not appear to be confined
to the judgments of this Court alone.
13. Judicial opinion on the question is split even among the High
Courts in the country. For instance, the High Court of Calcutta in
Sandip Guha v. Saktipada Ghosh 2008 (3) CHN 214, High
Court of Orissa in Niranjan Sahoo v. Utkal Sanitary, BBSR, [Crl.
Misc. Case No.889 of 1996, decided on 13
th
February, 1998],
High Court of Bombay in Rakesh Nemkumar Porwal v. Narayan
Dhondu Joglekar and Anr. 1994 (3) Bom CR 355, High Court of
Punjab and Haryana in Ashok Verma v. Ritesh Agro Pvt. Ltd.
1995 (1) Bank CLR 103 and the High Court of Andhra Pradesh in
N. Venkata Sivaram Prasad v. Rajeswari Constructions 1996
Cri.L.J. 3409 (A.P.) have taken the view that a complaint filed
within 15 days of the notice period was premature and hence liable
to be quashed.
14. The High Court of Allahabad on the other hand has taken a
contrary view in Smt. Hem Lata Gupta v. State of U.P & Anr.
2002 Cri.L.J. 1522 (All) and held that cognizance taken on the
basis of a complaint filed within 15 days of the notice period was
perfectly in order if such cognizance was taken after the expiry of
the said period. To the same effect are the decisions of High Court
of Allahabad in Ganga Ram Singh v. State of U.P. & Ors. 2005
Cri.L.J. 3681 (All), High Court of Gauhati in Yunus Khan v.
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Mazhar Khan, [2004 (1) GLT 652], High Court of Rajasthan
(Jaipur Bench) in Mahendra Agarwal v. Gopi Ram Mahajan,
[RLW 2003 (1) Raj 673], High Court of Delhi in Zenith Fashions
Makers (P) Ltd. v. Ultimate Fashion Makers Ltd. and Anr.,
[121 (2005) DLT 297], High Court of Madhya Pradesh, Indore
Bench in Bapulal v. Krapachand Jain, 2004 Cri.L.J. 1140, High
Court of Himachal Pradesh in Rattan Chand v. Kanwar Ram
Kripal and Anr. 2010 Cri.L.J. 706 and High Court of Madras in
I.S.P. Solutions India (P) Ltd. and Ors. v. Kuppuraj, 2006
Cri.L.J. 3711.
15. It is noteworthy that the same High Court has in certain cases
taken different views on the subject. For instance the High Court of
Jammu and Kashmir has in Harpreet Hosiery Rehari v. Nitu
Mahajan, 2000 Cri.L.J. 3625 held that dismissal of complaint on
ground of that the same is premature is valid; while in S. Janak
Singh v. Pritpal Singh, 2007 (2) J.K. 91, it has held that
cognizance taken on a complaint filed before expiry of 15 days of
the notice, after the expiry of the said period is permissible. A
similar difference of opinion can also be seen in two decisions of the
Karnataka High Court in Ashok Hegde v. Jathin Attawan, 1997
Cri.L.J. 3691 and Arun Hegde and Anr. v. M.J. Shetty, ILR
2001 Kar 3295. The conflict in the judicial pronouncements
referred to above, therefore, needs to be resolved authoritatively.
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16. The second question formulated earlier may arise only in case
the answer to the first question is in the negative. If no cognizance
could be taken on the basis of a complaint filed prematurely, the
question would be whether such a complaint could be presented
again after the expiry of 15 days and beyond the period of one
month under the clause (b) of Section 142 of the Act. Whether or
not the complainant can in a situation like the one in the case at
hand invoke the proviso to clause (b) and whether or not this Court
can and ought to invoke its power under Section 142 to permit the
complainant to file a complaint even after the expiry of period of one
month stipulated under Section 142 are incidental questions that
may fall for determination while answering question no.2.
17. In the light of the above, we deem it fit to refer the two
questions formulated in the beginning of the judgment to a threeJudge Bench of this Court. The Registry shall place the file before
the Chief Justice for constitution of an appropriate Bench.
……………………….……..……J.
(T.S. THAKUR)
………………………….…..……J.
(GYAN SUDHA MISRA)
New Delhi
April 3, 2012
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