REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1190            OF 2008 [Arising out of SLP (Crl.) No. 541 of 2008]

Subodh S. Salaskar …Appellant

  Versus

Jayprakash M. Shah & Anr. …Respondents

J U D G M E N T

S.B. SINHA,  J :

1. Leave granted.

2. Whether the proviso appended to Section 142 of the Negotiable

Instruments Act, 1881 (for short “the Act”) inserted by the Negotiable

Instruments  (Amendment  and  Miscellaneous  Provisions)  Act,  2002,  is

retrospective in operation is the question involved in this appeal which

arises out of a judgment and order dated 19.10.2007 passed by the High

Court  of  Judicature  at  Bombay in  Criminal  Writ  Petition  No.  330  of

2007.

3. The relationship between the parties hereto was that of a borrower

and creditor.   A financial  loan  of  Rs.  1,70,000/-  was  obtained  by the

appellant in 1996 from the respondent No. 1, which according to him has

been paid off.  Two post dated cheques, one bearing No. 460157 dated

6.12.1996 for a sum of Rs. 26,900/- and the other bearing No. 460158

dated 28.09.2000 for a sum of Rs. 1,70,000/-, however,   were handed

over to him.  

4. Appellant  contends  that  the  amount  of  loan was repaid  in  cash.

Admittedly, the cheques were presented before the bank on 10.01.2001.

They were returned to the respondent No. 1 by the bank alleging that no

such account,  in the name of the appellant  was in operation.   A legal

notice dated 17.01.2001 was sent by speed post asking the appellant to

2

pay  the  said  amount  of  Rs.  1,70,000/-  failing  which  legal  action

including criminal action would be taken against him.   

5. A  complaint  petition  alleging  commission  of  an  offence  under

Section 138 of the Act, however, was filed only on 20.04.2001.

6. Indisputably, the complaint petition was sought to be amended for

adding Section 420 of the Indian Penal Code in the complaint petition.

The said application was allowed by an order dated 14.08.2001.

7. Appellant  filed an application for discharge on 16.12.2003 inter

alia  on  the  premise  that  the  said  complaint  petition  was  barred  by

limitation.  It was dismissed by an order dated 14.11.2006.  The revision

application filed by the appellant before the learned Additional Sessions

Judge was also dismissed.  A criminal writ petition filed by the appellant

marked as Criminal Writ Petition No. 330 of 2007 before the High Court

of  Bombay has  been  dismissed  by reason  of  the  impugned  judgment

holding:

(i) The question as to whether the complaint is barred by limitation

is a mixed question of law and fact.  Even otherwise as a result

3

of amendment of Clause (b) of Section 142 of the Act even if

delay has been caused in filing the complaint,  the Magistrate

has power to condone the delay;

(ii) Although the Magistrate could not have allowed amendment of

the complaint petition but as it discloses sufficient averments in

regard to commission of an offence under Section 420 of Indian

Penal Code, the Trial Court was justified in issuing the process

in respect of the said provision also.  

8. Mr.  Manish Mohan,  learned counsel  appearing on behalf  of  the

appellant would submit that the High Court committed a serious error in

passing  the  impugned  judgment  insofar  as  it  failed  to  take  into

consideration that :

(i) the complaint  petition was barred by limitation, which would

be evident from the admitted facts;

(ii) the  proviso  appended  to  Clause  (b)  of  Section  142  being

substantive  in  nature  cannot  be  held  to  be  retrospective  in

operation;

(iii) allegations made in the complaint  petition even if  given face

value and taken to be correct in their entirety, no case has been

4

made out for taking cognizance under Section 420 of the Indian

Penal Code;

(iv) in any event, as the principal complaint being for commission

of  an  offence  under  Section  138  of  the  Act  was  not

maintainable, the application for amendment to insert Section

420 of the Indian Penal Code was also not maintainable.  

9. Mr.  Santosh  Paul,  learned  counsel  appearing  on  behalf  of  the

respondent No. 1, submitted that from a perusal of the complaint petition

it would appear that the date of service of notice being not fixed and the

complainant having asked the post office to disclose the date of actual

service of notice, it cannot be said that the legal notice was served upon

the accused immediately after issuance thereof.   

In any event, as the complaint petition disclosed commission of an

offence on the part of the appellant under Section 420 of the Indian Penal

Code, the High Court’s judgment is unassailable.   

10. Section 138 of the Act provides a penal provision.  The object of

the Parliament in brining the  same in the statute  book is  well-known,

viz., to create an atmosphere of faith and reliance in the banking system.   

5

11. The Act was amended in the year 2002 whereby additional powers

have been conferred upon the court to take cognizance even after expiry

of the period of limitation by conferring on it a discretion to waive the

period of one month.   

12. Before embarking on the questions raised, we may notice that the

proviso appended to Section 138 of the Act limits the applicability of the

main provision stating:

“138 - Dishonour of cheque for insufficiency, etc., of funds in the account  

*** *** ***  Provided  that  nothing  contained  in  this section shall apply unless--

(a) the 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;

(b) the payee or the holder in due course of the cheque,  as the case may be,  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  thirty  days  of  the  receipt  of information by him from the bank regarding the return of the cheque as unpaid; and

6

(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.”

Section 142 of the Act also puts a limitation in the power of the

court to take cognizance of the offences, which reads as under:

“142 . 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 :  

Provided  that  the  cognizance  of  a  complaint may be taken by the Court after the prescribed period,  if  the  complainant  satisfies  the  Court that  he had sufficient  cause for  not  making a complaint within such period.

(c) no court inferior to that  of a Metropolitan Magistrate or a Judicial Magistrate of the first

7

class  shall  try  any  offence  punishable  under section 138.”

13. As noticed  hereinbefore,  the proviso  appended to  Clause (b)  of

Section  142  of  the  Act  was  inserted  by  the  Negotiable  Instruments

(Amendment and Miscellaneous Provisions) Act, 2002.   

14. A  complaint  petition  alleging  commission  of  an  offence  under

Section 138 of the Act must demonstrate that the following ingredients

exist, i.e.:

(a) a cheque was issued;

(b) the same was presented;

(c) but, it was dishonoured;

(d) a notice in terms of the said provision was served on the

person sought to be made liable; and

(e) despite service of notice, neither any payment was made

nor other obligations, if any, were complied with within

fifteen days from the date of receipt of the notice.

8

[See  S.M.S.  Pharmaceuticals  Ltd. v.  Neeta  Bhalla  and  Another

(2007)  4  SCC 70,  Saroj  Kumar  Poddar v.  State  (NCT of  Delhi)  and

Another (2007)  3 SCC 693  and  DCM Financial  Services  Ltd. v.  J.N.

Sareen and Another 2008 (8) SCALE 54]

15. Indisputably, therefore, unless the conditions precedent for taking

cognizance of an offence under Section 138 of the Act are satisfied, the

court will have no jurisdiction to pass an order in that behalf.

16. We will  have  to  examine  the  contentions  raised  by  the  leaned

counsel for the parties hereto keeping in view the aforementioned legal

principles in mind.  Before, however, we advert thereto, we may place on

record that  the averments  made in  the complaint  petition  in  regard to

service of notice are in the following terms:

“8. I say that the said Bank of the Accused, returned  /  dishonoured  Cheque  No.  460158 dated  28.09.2000  of  Rs.  1,70,000/-  drawn  on Bank  of  India,  Maheshwari  Udyan  Branch, Mumbai,  under  Bank  remark  “NO  SUCH ACCOUNT WITH US”.  The said remark was given in handwriting by the Branch Manager of the Bank of India, Maheshwari Udyan Branch, Mumbai  in its  Bank Memo dated 10.01.2001, though in the said Bank Memo at Sr. No. 11, it is printed at 11(b) Account closed and at 11(c) no account.  This Bank Memo was received by

9

me on 17.01.2001.  Attached herewith is Xerox copy  of  the  said  Cheque  No.  460158  dated 28.09.2000  of  Bank  of  India,  10.01.2001  and marked  thereto  as  Exhibit  “A”  thereto  which are very clear and self-explanatory.  I am also attaching herewith Xerox copy of dishonoured Cheque  No.  460157  dated  06.12.1996  of  Rs. 26,900/-  of  the  Accused  drawn  on  Bank  of India, Maheshwari Udyan Branch, Mumbai and marked it  as Exhibit  “B” thereto which speak much more about the Bank account No. 1365 of the Accused lying with his said Bank.

9. I  say  that  immediately,  vide  my  letter Ref.  No.  JMS/SSS/CRIM/01/2001  dated 17.01.2001,  I  sent  demand  notice  to  the Accused through Speed Post Acknowledgment due  postal  services.   Attached  herewith  is Xerox copy of  the said Demand Notice along with copy of postal speed post A.D. receipt No. 000271184 – SSPNL 650 dated 19.01.2001 and marked it as Exhibit “C” Colly thereto which is very  clear  and  self-explanatory.   I  say  that  I have  not  yet  received  Speed  Post Acknowledgement  Slip  with  due acknowledgement thereon from the Accused as to the receipt of the said Demand notice.

10. I  say  that  with  abundant  and  due precautions with a view to avoid technicalities, through my advocate, Mr. Sunil Bagwe’s letter Ref.  No.  SSB/JMS/BOI/01/2001  dated 05.03.2001 asked for detailed information as to the reasons  given  by the Branch  Manager,  in his Bank memo dated 10.01.2001.  The Branch Manager  of  the  said  Bank  Branch  of  the Accused,  after  various  my approaches,  finally given  acknowledgement  of  the  receipt  of  the aforesaid letter of my advocate on 14.03.2001, attached  herewith  is  Xerox  copy  of  the  said letter  and  marked  it  as  Exhibit  “D”  thereto which is very clear and self-explanatory.  The

10

Branch Manager of Bank of India, Maheshwari Udyan Branch, Mumbai vide his letter Ref. No. MU/ADV/MNI/39/853 dated 14.03.2001, given vague,  non-cooperative,  unwilling,  ill-wishes reply to my advocate’s letter by courier services on  26.03.2001.   Attached  herewith  is  Xerox copy of the said letter of the Bank of India and marked it as Exhibit “E” thereto which is very clear and self-explanatory.”

17. As regards purported commission of an offence under Section 420

of the Indian Penal Code, on the part of the petitioner, it was alleged:

“16. I  say  that  the  aforesaid  Cheque  which was issued by the Accused in discharge of his debts  and  liability  to  me in  full,  which  were dishonoured by the Bank of  the accused with reason “No such account with us”.  I say that the  Accused  failed  and  neglected  to  make payments  as  per  my  demand  notice  dated 17.01.2001.   The  Accused  has  failed  and neglected to make good attempts  for  payment of  his  dishonoured  cheques  on  receipt  of  my demand notice, within the stipulated period as provided under Section 138(c) of the N.I. Act, 1988, therefore, the Accused has committed an offence punishable under section 138 read with section  141  and  section  142  of  the  N.I.  Act 1881  (as  amended)  and  Section  420  of  the I.P.C.”

18. The cause of action of filing the said complaint was stated in the

following terms:

11

“17. I  say  that  the  aforesaid  cheque  of  the drawer, the Accused herein was returned by the Complainant’s banker i.e. the Deccan Merchant Co-op.  Bank  Ltd.  Ghatkopar  (E)  Branch, Mumbai 400 077, which is situated within the jurisdiction  of  this  Hon’ble  Court  and, therefore,  this  Hon’ble  Court  is  competent  to take cognizances of this present complaint and try  the  same.   The  demand  notice  to  the Accused was issued within the stipulated period and the present complaint has been filed within the prescribed period as provided under Section 142  (b)  of  the  Negotiable  Instruments  Act, 1881 (as amended) and, therefore, the Accused has  committed  an  offence  punishable  under Section 138 read with section 141 and section 142  of  the  N.I.  Act  1881  (as  amended)  and Section 420 of the I.P.C.

18. I say that the Accused has drawn Cheque of post dated in Mumbai with intention to cheat me.  Hence, the accused must have closed his Bank  Account  No.  1365  of  Bank  of  India, Maheshwari  Udyan  Branch,  Mumbai subsequently and now, after the receipt of my demand notice, the accused has refused to make the  payment  of  his  dishonoured  cheques  as above in Mumbai.  Hence, this Hon’ble Court has jurisdiction to entertain, try and decide this present complaint.  I say that the Accused has committed  criminal  offences  under  the Negotiable  Instruments  Act,  1881  (as Amended) and section 420 of the I.P.C., within the jurisdiction to take cognizances of the same and try and decide the said offences.”

12

19. A complaint petition in view of Clause (b) of Section 142 of the

Act was required to be filed within one month from the date on which the

cause of action arose in terms of clause (c) of the proviso to Section 138

of the Act which stipulates that “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”.   

The legal notice admittedly was issued on 17th January, 2001. It

was sent by speed post.  It was supposed to be served within a couple of

days.   A bare  perusal  of  the  statements  made in  paragraph  10 of  the

complaint  petition,  as  quoted  hereinbefore,  clearly  demonstrate  that

although the actual date of service of notice was allegedly not known, the

complainant proceeded on the basis that the same was served within a

reasonable period; otherwise in absence of service of notice or deemed

service  thereof,  the  question  of  non-compliance  of  clause  (c)  of  the

proviso  appended  to  Section  138  of  the  Act  would  not  arise  and

consequently the complaint petition would not be maintainable..   

20. In Jindal Steel and Power Ltd. and Another v. Ashoka Alloy Steel

Ltd. and Others [(2006) 9 SCC 340], this Court held:

13

“2. By the impugned order, the High Court has quashed the prosecution under Section 138 of  the  Negotiable  Instruments  Act,  1881  (for short “the Act”) and Section 420 of the Penal Code,  on  the  sole  ground  that  the  complaint was  filed  two  days  after  the  expiry  of limitation. In the present case, notice was sent under  Section  138  of  the  Act  on  4-1-1997, which was served on the accused on 10-1-1997, giving him 15 days’ time for making payment, which expired on 25-1-1997. Cause of action to file the complaint accrued on 26-1-1997, which day has to be excluded in computing the period of limitation, as required under Section 12(1) of the  Limitation  Act,  1963.  Therefore,  the limitation  would  be  counted  from  27-1-1997 and  the  complaint  was  filed  on  26-2-1997, within a period of one month from that date, as such, the same was filed well within time. We find that the point is concluded by a judgment of  this  Court  in  Saketh  India  Ltd. v.  India Securities  Ltd. in  which  case  taking  into consideration the provisions of Section 12(1) of the Limitation  Act,  it  was  laid  down that  the day on which cause of action had accrued has to  be  excluded  for  reckoning  the  period  of limitation for filing a complaint under Section 138  of  the  Act.  In  the  present  case,  after excluding  the  day  when  cause  of  action accrued,  the  complaint  was  filed  well  within time; as such the High Court was not justified in  holding  that  there  was  two  days’  delay  in filing the complaint. For the foregoing reasons, we are of the view that the High Court was not justified  in  quashing  prosecution  of  the respondents.”

14

21. In terms of  the  provisions  of  the General  Clauses  Act,  a  notice

must be deemed to have been served in the ordinary course subject to the

fulfillment  of  the  conditions  laid  down  therein.    Section  27  of  the

General Clauses Act reads as under:

“27.  Meaning  of  service  by  post.—Where any Central  Act  or  Regulation made after  the commencement  of  this  Act  authorises  or requires  any  document  to  be  served  by  post, whether the expression ‘serve’ or either of the expression  ‘give’  or  ‘send’  or  any  other expression  is  used,  then,  unless  a  different intention appears, the service shall  be deemed to  be  effected  by  properly  addressing,  pre- paying and posting by registered post,  a letter containing  the  document,  and,  unless  the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Thirty  days’  time  ordinarily  must  be  held  to  be  sufficient  for

service  of  notice.   In  fact  when  the  service  of  notice  is  sought  to  be

effected by Speed Post, ordinarily the service takes place within a few

days.  Even under Order V, Rule 9(5) of the Code of Civil Procedure,

1908, summons is presumed to be served if it does not come back within

thirty days.  In a situation of this nature, there was no occasion for the

Court to hold that service of notice could not be effected within a period

of thirty days.

15

22. Presumption  of  service,  under  the  statute,  would  arise  not  only

when it is sent by registered post in terms of Section 27 of the General

Clauses Act but such a presumption may be raised also under Section

114 of the Evidence Act.  Even when a notice is received back with an

endorsement that the party has refused to accept, still then a presumption

can be raised as regards the valid service of notice.  Such a notice, as has

been held by a Three-Judge Bench of this Court in  C.C. Alavi Haji v.

Palapetty  Muhammed  and  Another [(2007)  6  SCC  555]  should  be

construed liberally, stating :

“17. It is also to be borne in mind that the requirement  of  giving  of  notice  is  a  clear departure from the rule of criminal law, where there  is  no  stipulation  of  giving  of  a  notice before  filing  a  complaint.  Any  drawer  who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act,  make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons  (by  receiving  a  copy  of  complaint with  the  summons)  and,  therefore,  the complaint is liable to be rejected. A person who does not  pay within 15 days of receipt of the summons from the court along with the copy of the  complaint  under  Section  138  of  the  Act, cannot  obviously  contend  that  there  was  no proper  service  of  notice  as  required  under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act

16

and Section  114  of  the  Evidence  Act.  In  our view,  any  other  interpretation  of  the  proviso would defeat the very object of the legislation. As observed in    Bhaskaran case   if the “giving   of  notice” in the  context  of  Clause (  b  )  of the   proviso was the same as the “receipt of notice” a  trickster  cheque  drawer  would  get  the premium  to  avoid  receiving  the  notice  by adopting  different  strategies  and  escape  from legal consequences of Section 138 of the Act.”

[Emphasis supplied]

23. The complaint petition admittedly was filed on 20.04.2001.  The

notice having been sent on 17.01.2001, if the presumption of service of

notice within a reasonable time is raised, it  should be deemed to have

been  served  at  best  within  a  period  of  thirty  days  from the  date  of

issuance thereof,  i.e.,  16.02.2001.  The accused was required to  make

payment in terms of the said notice within fifteen days thereafter, i.e., on

or about 2.03.2001.  The complaint petition, therefore, should have been

filed by 2.04.2001.   

24. Ex  facie,  it  was  barred  by  limitation.   No  application  for

condonation of delay was filed.  No application for condonation of delay

was otherwise maintainable.  The provisions of the Act being special in

nature, in terms thereof the jurisdiction of the court to take cognizance of

17

an offence under Section 138 of  the Act was limited to the  period of

thirty days in  terms of  the proviso appended thereto.   The Parliament

only with a view to obviate the aforementioned difficulties on the part of

the complainant inserted proviso to Clause (b) of Section 142 of the Act

in 2002.  It confers a jurisdiction upon the court to condone the delay.  It

is,  therefore,  a  substantive  provision  and  not  a  procedural  one.   The

matter might have been different if the Magistrate could have exercised

its  jurisdiction  either  under  Section  5  of  the  Limitation  Act,  1963  or

Section 473 of the Code of Criminal Procedure, 1976.  The provisions of

the said Acts are not applicable.  In any event, no such application for

condonation of delay was filed.  If the proviso appended to Clause (b) of

Section  142  of  the  Act  contained  a  substantive  provision  and  not  a

procedural one, it could not have been given a retrospective effect.  A

substantive law, as it is well-settled, in absence of an express provision,

cannot be given a retrospective effect or retroactive operation.

25. In  Madishetti  Bala  Ramul  (Dead)  By LRs. v.  Land  Acquisition

Officer [(2007) 9 SCC 650], this Court held as under:

“18. It is not the case of the appellants that the  total  amount  of  compensation  stands reduced.  If  it  had  not  been,  we  fail  to understand as to how Section 25 will have any application  in  the  instant  case.  Furthermore,

18

Section  25  being  a  substantive  provision  will have no retrospective effect. The original award was  passed  on  8-2-1981:  Section  25,  as  it stands  now,  may,  therefore,  not  have  any application in the instant case.”

The question is now covered by a judgment of this Court in  Anil

Kumar Goel v. Kishan Chand Kaura [2008 AIR SCW 295] holding:

“8.  All  laws  that  affect  substantive  rights generally  operate  prospectively  and  there  is  a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect  may be given where there are express words giving retrospective effect or where  the  language  used  necessarily  implies that  such  retrospective  operation  is  intended. Hence  the  question  whether  a  statutory provision  has  retrospective  effect  or  not depends primarily on the language in which it is  couched.  If  the  language  is  clear  and unambiguous,  effect  will  have  to  be  given to the provision is question in accordance with its tenor. If the language is not clear then the court has  to  decide  whether,  in  the  light  of  the surrounding circumstances, retrospective effect should be given to it  or not.  (See:  Punjab Tin Supply  Co.,  Chandigarh  etc.  etc. v.  Central Government and Ors., AIR 1984 SC 87).

9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was  intended  to  operate  retrospectively. In  fact  that  was  not  even  the  stand  of  the respondent. Obviously, when the complaint was filed on 28.11.1998,  the respondent  could not have  foreseen  that  in  future  any  amendment

19

providing for extending the period of limitation on  sufficient  cause  being  shown  would  be enacted.”

26. Therefore, there cannot  be any doubt whatsoever that the courts

below committed a manifest error in applying the proviso to the fact of

the instant case.  If the complaint petition was barred by limitation, the

learned Magistrate had no jurisdiction to take cognizance under Section

138  of  the  Act.   The  direction  to  issue  summons  on  the  appellant,

therefore, being illegal and without jurisdiction was a nullity.

27. Section 415 of the Indian Penal Code defines “cheating”. The said

provision requires: (i) deception of any person, (ii) whereby fraudulently

or dishonestly inducing that person to deliver any property to any person

or  to  consent  that  any  person  shall  retain  any  property,  or  (iii)

intentionally inducing that person to do or omit to do anything which he

would  not  do  or  omit  if  he  were  not  so  deceived,  and  which  act  or

omission causes or is likely to cause damage or harm to that person in

body, mind, reputation or property. Deception of any person is common

to the second and third requirements of the provision.  [See  Devender

Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15]

20

28. Noticing the ingredients  of cheating, this Court  in  Suryalakshmi

Cotton Mills  Ltd. v.  Rajvir  Industries  Ltd.  and Ors.,  [JT 2008 (1)  SC

340], held :

“A  bare  perusal  of  Section  415 read  with Section  420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.

22.  For the said purpose,  we may only notice that  blank  cheques  were  handed  over  to  the accused  during  the  period  2000-2004  for  use thereof  for  business  purposes  but  the  dispute between  the  parties  admittedly  arose  much thereafter i.e. in 2005.

In B. Suresh Yadav v. Sharifa Bee 2007 (12) SCALE 364, it was held;

13. For the purpose of establishing the offence of  cheating,  the  complainant  is  required  to show  that  the  accused  had  fraudulent  or dishonest  intention  at  the  time  of  making promise  or  representation.  In  a  case  of  this nature, it is permissible in law to consider the stand  taken  by  a  party  in  a  pending  civil litigation.  We  do  not,  however,  mean  to  lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when  a  stand  has  been  taken  in  a  complaint petition  which  is  contrary  to  or  inconsistent with the stand taken by him in a civil  suit,  it assumes significance. Had the fact as purported to  have  been  represented  before  us  that  the appellant  herein  got  the  said  two  rooms

21

demolished and concealed the said  fact  at  the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed  on 30.9.2005 and the purported demolition  took  place  on  29.9.2005,  it  was expected that  the complainant/first  respondent would come out with her real grievance in the written  statement  filed  by  her  in  the aforementioned  suit.  She,  for  reasons  best known to her, did not choose to do so.

No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out.

23. Filling up of the blanks in a cheque by itself would  not  amount  to  forgery.  Whereas  in  the complaint petition, allegations have been made that  it  was respondent  Nos.  2 and 3 who had entered  into  a  conspiracy  to  commit  the  said offence  as  indicated  hereinbefore,  in  the counter  affidavit,  it  has  been  alleged  that  the employees  of  the  Respondent  Company  did so.”

29. The cheques were post dated ones.  Admittedly they were issued in

the year 1996.  They were presented before the bank on a much later

date.   They  were  in  fact  presented  only  on  10.01.2001.   When  the

cheques were issued, the accounts were operative.  Even assuming that

the account was closed subsequently the same would not mean that the

appellant  had an intention to cheat  when the post  dated cheques were

issued.  Even otherwise the allegations made in the complaint petition,

22

even if  given face value and taken to be correct  in its  entirety do not

disclose commission of an offence under Section 420 of the Indian Penal

Code.  They do not satisfy the ingredients of the suit provision.  It is,

therefore, in the fact situation obtaining in the instant case, difficult to

hold that the provisions of Section 420 of the Indian Penal Code were

attracted.   

30. The  court  had  no  jurisdiction  to  allow  the  amendment  of  the

complaint  petition at a later stage.  Therefore, the High court  was not

correct in taking the aforementioned view in the facts and circumstances

of the present case.

31. For the reasons aforementioned, the impugned judgment cannot be

sustained which is set aside accordingly.  The appeal is allowed.

………………………….J. [S.B. Sinha]

..…………………………J. [Cyriac Joseph]

New Delhi; August 01, 2008

23