By the nature of the offence Under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated Under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated Under Section 138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution Under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence Under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence Under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an Accused. The offence Under Section 138 is person specific. Therefore, the Parliament declared Under Section 142 that the provisions dealing with taking cognizance contained in the Code of Criminal Procedure should give way to the procedure prescribed Under Section 142. Hence the opening of non-obstante Clause Under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1534 of 2017 (Arising out of SLP (Crl.) No. 1439 of 2017)
Decided On: 30.08.2017
N. Harihara Krishnan Vs. J. Thomas
Hon'ble Judges/Coram:
Jasti Chelameswar and S. Abdul Nazeer, JJ.
