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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. L...I...T.......T.......T.......T.......T.......T.......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."

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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@@     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  cheque an offence provides that nothing contained in the@@ JJJJJJJJJJ 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:@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   "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.