Criminal Appeal Nos. 605 of 2012, 1924 and 1925 of 2014. Case: Yogendra Pratap Singh Vs Savitri Pandey. Supreme Court (India)

Case NumberCriminal Appeal Nos. 605 of 2012, 1924 and 1925 of 2014
JudgesR. M. Lodha, C.J.I., Kurian Joseph and Rohinton Nariman, JJ.
IssueNegotiable Instruments Act, 1881 - Sections 138, 139, 140, 141, 142, 143, 144, 145, 146, 147; Code of Criminal Procedure (CrPC), 1973 - Sections 2, 190, 190(1), 190(2), 313, 482
Judgement DateSeptember 19, 2014
CourtSupreme Court (India)

Judgment:

R. M. Lodha, C.J.I.

1. In the order of 03.04.2012, a two-Judge Bench of this Court granted leave in SLP (Crl.) No. 5761 of 2010. The Court formulated the following two questions for consideration:

(i) Can cognizance of an offence punishable Under Section 138 of the Negotiable Instruments Act 1881 be 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?

2. The two-Judge Bench in that order noticed Section 138 and Section 142 of the Negotiable Instruments Act, 1881 ("NI Act") and also referred to the two decisions of this Court, namely, (1) Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. [(2000) 7 SCC 183] and (2) Sarav Investment and Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr. [(2007) 14 SCC 753]. The Bench also noticed the judgments of High Courts of Calcutta, Orissa, Bombay, Punjab and Haryana, Andhra Pradesh, Allahabad, Gauhati, Rajasthan, Delhi, Madhya Pradesh, Himachal Pradesh, Madras, Jammu and Kashmir and Karnataka and observed that judicial opinion on the first question was split among the High Courts in the country and so also the two decisions of this Court in Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. [(2000) 7 SCC 183] and Sarav Investment and Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr. [(2007) 14 SCC 753]. Even amongst the two High Courts, namely, Jammu and Kashmir and Karnataka, the Bench noticed that the decisions on the first question were not uniform. It was felt by the two-Judge Bench that the conflict in the judicial pronouncements needed to be resolved authoritatively and, accordingly, referred the above two questions for consideration by a three-Judge Bench of this Court.

3. This is how the matter has been placed before us.

4. It is not necessary to narrate the facts in detail. Suffice it to refer to factual matrix noted in the referral order which is as follows:

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 7th October, 2008 when a complaint Under Section 138 of the Act aforementioned was filed before the Magistrate. Significantly enough the notice in question having been served on 23rd September, 2008, the complaint presented on 7th October, 2008 was filed before expiry of the stipulated period of 15 days. The Magistrate all the same took cognizance of the offence on 14th October, 2008 and issued summons to the accused, who then assailed the said order in a petition Under Section 482 of the Code of Criminal Procedure 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.

5. Before we advert to the two decisions of this Court in Narsingh Das Tapadia Goverdhan Das Partani and Anr.: [(2000) 7 SCC 183] and Sarav Investment & Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr.; [(2007) 14 SCC 753], and few decisions of the High Courts, we think it proper to refer to Sections 138 and 142 of the NI Act. Section 138 of the NI Act, as it stands today after amendment by Act 55 of 2002, defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed and the proviso appended thereto makes certain eventualities/conditions precedent for the commission of offence. It reads as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the account. - 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 honor 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 any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

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

(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.

6. Section 142 deals with cognizance of offences. The said provision, after amendment by Act 55 of 2002, is 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 class shall try any offence punishable Under Section 138.

7. It may not be out of place to mention here that entire Chapter XVII of the NI Act was brought in the statute by Act 66 of 1988 w.e.f. 01.04.1989. This Chapter comprises of Sections 138 to 147.

8. The other two provisions which deserve mention are Sections 2(d) and 190 of the Code of Criminal Procedure, 1973 ("Code"). Section 2(d) defines complaint in the context of the Code as follows:

2(d)"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

9. Chapter XIV of the Code bears the title 'Conditions Requisite for Initiation of Proceedings'. This chapter has only one provision namely, Section 190. Section 190 makes provision for cognizance of offences by Magistrates. It reads as under:

190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf Under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance Under Sub-section (1) of such offences as are within his competence to inquire into or try.

10. Before the decision of this Court in Narsingh Das Narsingh Das...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT