Prematured complaint – cheque bounce case- simply because the complaint was filed before expiry of notice period of 15 days contemplated by Section 138(c) of the Act, the complaint cannot be dismissed as premature. Reliance was placed on Narsingh Das Tapadia v. Goverdhan Das Partani1 of the Supreme Court. In that case, the complaint was filed on 08.11.1994 before expiry of 15 days period provided under Section 138(c) of the Act, the cognizance of the case was taken only on 17.11.1994 after expiry of 15 days' statutory period and within the period of limitation. In L K Prabhavathi v. K.V. Sree Rama Murthy2, this Court indicated the course open to the Magistrate when the complaint was presented on 14th day after receipt of notice by the accused, to the following effect: "the payee or the holder in due course of the cheque, as the case may be, is not precluded from maintaining the complaint filed prior to the arising of the cause of action either praying the Court to keep the complaint pending on it's file or seeking return of the compliant for presenting it immediately after the cause of action arises to the complainant. Therefore, if a complaint if filed before arising of cause of action, it only means that the court will not take cognizance of the complaint till the time cause of action arises to the complainant." But, in the case on hand, the complainant/appellant was in a hurry. He filed the complaint on 06.05.2005, got his sworn statement recorded in the lower court on 06.05.2005 itself; and the lower court took cognizance of the offence on the same day i.e., on 06.05.2005 itself. The complainant could have asked the lower court to record his sworn statement on the next day or the lower court could have returned the complaint on the ground that the period provided under Section 138(c ) of the Act did not expire.





THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              
Criminal Appeal No.956 of 2009

07-07-2010

Shyamlal Jain.

evalchand Jain and another.

Counsel for the Petitioner : Sri K. Vinaya Kumar

Counsel for the 1st Respondent:    ----
Counsel for the 2nd respondent: Public Prosecutor

:ORDER:

1.      This is the complainant's appeal against acquittal  of the accused/1st
respondent recorded by the X Additional Chief Metropolitan Magistrate,
Secunderabad in C.C.No.439 of 2005 by judgment dated 10.02.2009.  The
complainant/appellant filed complaint in the lower court against the accused
alleging offence punishable under Section 138 of the Negotiable Instruments Act
(in short, the Act).  Most of the facts in this appeal are not in dispute.  The
only ground on which the lower court acquitted the accused is that the complaint
was premature.

2.      Thus, the only point which arises for determination in this appeal is:

        Whether  the complaint in this case was premature.

3.      The accused gave Ex.P-3 cheque dated 11.04.2005 to the complainant for
Rs.15,00,000/-.  It is stated to be a post-dated cheque issued by the accused
after borrowing Rs.15,00,000/- from the complainant under Ex.P-1 promissory note
and Ex.P-2 undertaking letter and receipt-cum-acknowledgement.  When the
complainant presented the cheque for encashment after the date mentioned on it,
it was dishonoured by banker of the accused on the ground of closure of account.
Ex.P-4 is cheque return memo dated 15.04.2005 of the banker.  Thereupon, the
complainant got issued Ex.P-5 statutory  notice dated 17.04.2005 to the accused
by registered  post. Ex.P-7 is postal receipt therefore and it reveals that the
notice was registered on 19.04.2005.  Ex.P-8 is certificate of posting to the
effect that the letter was posted to the accused on 19.04.2005.  Ex.P-6 is reply
notice dated 04.05.2005 got issued by the accused to the complainant.  On Ex.P-9
postal acknowledgement of the accused, date of receipt of the notice by the
accused is not clear.  In para-4 of the complaint, the complainant stated that
the accused received  the said legal notice on 20.04.2005 and that the accused
did not repay the amount.  The complaint was filed in the lower court on
06.05.2005 and sworn statement of the complainant was recorded by the lower
court on the same date and cognizance of the offence was taken by the lower
court on the same date.  In para-4 of the complaint, there is correction in date
of receipt of notice by the accused and in the list of documents appended to the
complaint also, there is correction in date of portal acknowledgement. Though
the notice Ex.P-5 is dated 17.04.2005, there is no dispute that it was
dispatched to the accused by registered post and by certificate of posting on
19.04.2005.  Ex.P-7 postal receipt shows that a registered letter was received
in the post office at 1.30 p.m., or 13.30 hours on 19.04.2005.  In the date
stamp on Ex.P-9 postal acknowledgement, out of two digits  in the date portion,
only the first digit '2' is visible and the second digit is not visible.
According to the  1st respondent/accused, Ex.P-9 postal acknowledgement is dated
22.04.2005. As per the original office note put up by the staff of the lower
Court on the complaint before the then Presiding Officer of the lower court, the
date of receipt of notice by the accused was 22.04.2005.  It shows  that  after
the said office note and after the  lower court took cognizance of the offence
and issued summons to the accused, there are unauthorised corrections in para-4
of the complaint as well as striking  of date pertaining to the postal
acknowledgement in the list of documents appended to the complaint.  The office
note was put up in the lower court on the basis of original complaint which was
not interpolated.  Therefore, the lower court rightly came to the conclusion
that Ex.P-5 notice was served on the accused as per Ex.P-9 postal
acknowledgement on 22.04.2005.  If 15 days period allowed to the accused for
payment under Section 138(c) of the Act are computed from 22.04.2005, then it
follows that the complaint was presented on 14th day after issue of notice and
the lower court took cognizance of the offence on 14th day after service of
Ex.P-5 notice on the accused. In that view of the matter, the lower court came
to the conclusion that the complaint was premature and that taking cognizance of
the offence was also premature.

4.      It is contended by the appellant's counsel that simply because the
complaint was filed before expiry of notice period of 15 days contemplated by
Section 138(c) of the Act, the complaint cannot be dismissed as premature.
Reliance was placed on Narsingh Das Tapadia v. Goverdhan Das Partani1  of the
Supreme Court.  In that case, the complaint was filed on 08.11.1994 before
expiry of 15 days period provided under Section 138(c) of the Act, the
cognizance of the case was taken only on 17.11.1994 after expiry of 15 days'
statutory period and within the period of limitation.      In L K Prabhavathi v.
K.V. Sree Rama Murthy2, this Court indicated the course  open to the Magistrate
when the complaint was presented on 14th day after receipt of notice by the
accused, to the following effect:
"the payee or the holder in due course of the cheque, as the case may be, is not
precluded from maintaining the complaint filed prior to the arising of the cause
of action either praying the Court to keep the complaint pending on it's file or
seeking return of the compliant for presenting it immediately after the cause of
action arises to the complainant. Therefore, if a complaint if filed before
arising of cause of action, it only means that the court will not take
cognizance of the complaint till the time cause of action arises to the
complainant."

But, in the case on hand, the complainant/appellant was in a hurry.  He filed
the complaint on 06.05.2005, got  his sworn statement recorded in the lower
court on 06.05.2005 itself; and the lower court took cognizance of the offence
on the same day i.e., on 06.05.2005 itself.  The complainant could  have asked
the lower court to record his sworn statement on the next day or the lower court
could have returned the complaint on the ground that the period provided under
Section 138(c ) of the Act did not expire.

5.      When the period of 15 days  after service  of notice to the accused is
given to the accused for payment of amount covered by the dishonoured cheque,
the accused can validly make payment of the cheque amount till 12.00 midnight
on the 15th day.  It is only thereafter cause of action will arise to the
accused for filing complaint alleging the offence under Section 138 of the Act
against the accused.  Till 12.00 midnight  on the 15th day, there is no
occurrence  of the offence at all.  It is only default in payment of the cheque
amount even after 15 days, which constitutes offence under Section 138 of the
Act.  Mere dishonour of cheque is no offence under Section 138 of the Act, and
it is only default in repayment of the dishonoured cheque amount which attracts
penal liability under that provision. In N. Venkata Sivaram Prasad v. M/s.
Rajeswari Constructions3, Division Bench of this Court, held:
"UNDER Section 138, until and unless the criteria laid down therein are complied
with, it would not constitute an offence. Proviso (c) clearly stipulates that
the Section does not apply unless the drawer of the cheques fails to make the
payment to the payee within 15 days of the receipt of the said notice. Thus, the
payee has been given liberty to make the payment within 15 days of the receipt
of the notice even though the cheque was returned by the Bank unpaid. Hence, the
reading of Proviso (c) to Section 138 clearly denotes that it would not be an
offence if the drawer pays the amount within a period of 15 days as a specified
therein. In such circumstances, there could not have been any complaint alleging
the violation of Section 138. The pre-offence period granted to the payee should
be construed strictly, otherwise the very purpose of Section 138 (c) of the
Negotiable Instruments Act would be frustrated. The complainant should be able
to point out to the offence under Section 138 when the complaint was filed. When
the complaint is filed even before the offence is completed, it cannot be said
that the offence is made out and, therefore, such complaint is invalid in the
eye of law."

6.      Having regard to the above legal  position and factual aspects of the
case, this Court is of the opinion that the complaint filed by the appellant in
the lower court is premature and that there was no offence  under Section 138 of
the Act committed by the accused/1st respondent by the time of presentation of
the complaint in the lower court and by the time the offence therein taken
cognizance by the lower court.  The lower court rightly acquitted the accused.
There are no valid or legal grounds in this appeal to interfere  with finding of
acquittal recorded by the lower court.

7.      In the result, the appeal is dismissed.

?1 AIR 2000 Supreme Court 2946
2  2006 (2) ALD (Cri) 966
3 1996 CRI.L.J.3409
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