No cognizance on a complaint which was pre-mature:
Before meeting the 2nd contention as to the validity of cognizance on a pre-mature complaint, it would be apposite to quote paragraphs- 35 & 36 in the judgment of Yogendra Pratap Singh vs. Savitri Pandey, 2014 (10) SCC 713, on which heavy reliance is placed by learned counsel for the applicant.
35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in Clause (c) of the proviso has not expired? Section 2 (d) of the Code defines 'complaint'. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in Clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence Under Section 138 except upon a written complaint. Since a complaint filed Under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence Under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.
36. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of Clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, withSection 142 (b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed Under Clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. and Ors. AIR 2000 SC 954 : (2000) 2 SCC 745] and which we have approved, must be satisfied for a complaint to be filed Under Section 138. If the period prescribed in Clause (c) of the proviso to Section 138has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint Under Section 138 of the NI Act.
To appreciate the observations made in paragraphs-35 & 36 in Yogendra Pratap Singh (supra), it would be pertinent to consider the context in which the said observations were made. One of the issues involved before the Apex Court, was to the following effect:
1.1 (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,
9. The Apex Court was examining as to whether cognizance of an offence under Section 138 of the Act could be taken, even though the 15 day period indicated in the statutory notice had not expired. Against the said backdrop, the Apex Court after examining the ingredients of Section 138 of the Act which inter alia includes issuance of a statutory notice within a month from the date of the reported dishonour of the cheque and a period of 15 days having expired from the date of the receipt of the notice, a complaint under Section 138 of the Act could be filed upto the period of one month and in that context, the Apex Court held that where 15 days statutory period had not expired, the complaint filed before the expiry of 15 days period, would not be maintainable.
10. Once this is the legal position as regards the maintainability of a complaint filed before the expiry of the 15 day period indicated in the notice, observations made in paragraphs- 35 & 36 in Yogendra Pratap Singh (supra) will have to be read with the issue which was under consideration before the Apex Court. Thus, the bar of cognizance which is referred in paragraphs - 35 & 36 would relate to those cases only where a pre-mature complaint is filed on admitted materials at the stage of summoning, else if the contention of the applicant is accepted, it would not only defeat the purpose and object of the enactment but would run counter to the judgment of the Apex Court in the cases of C.C. Alavi Haji (supra) and Ajeet Seeds (supra), where consistent view has been taken that for the purpose of summoning, what is to be seen is only the mode and manner of the issuance of the notice and not its service. In Yogendra Pratap Singh (supra), the complaint was filed before the expiry of 15 days from the date of receipt of notice, as per the complaint allegations. Thus, the complaint itself was not maintainable on the admitted allegations made in the complaint.
11. Learned counsel for the applicant placed heavy reliance on the judgment of Salaskar (supra) to contend that 30 days time ordinarily must be held to be sufficient for service of notice and if that be so, a complaint filed on 12.8.2009 on the basis of notice dated 18.7.2009, was not maintainable. The Court finds that in Vinay Patni vs. State of U.P. and others, 2013(80) ACC 1, this Court held that the period of 30 days taken to effect service in Salaskar (supra) is only the outer limit in a case of presumed service for judging whether the complaint is barred by limitation or not, because in Salaskar (supra), a legal notice dated 17.1.2001 was sent by speed post, whereas the complaint under Section 138 of the Act, was filed on 20.4.2001. Thus, the Apex Court held that the notice dated 17.1.2001 must be deemed to have been served at best within 30 days from the date of issuance thereof, i.e., upto 16.2.2001, whereas it ought to have been filed by 2.4.2001, but the same was filed on 20.4.2001. The decision in the case of Salaskar (supra) would not come to the rescue of the applicant.
Thus on the facts of the present case, a complaint filed on 12.8.2009 on the basis of registered notice dated 18.7.2009, cannot be said to be pre-mature.
Allahabad High Court
Smt. Mohini Verma vs State Of U.P. & Others on 30 September, 2015
Bench: Pankaj Naqvi
Citation:2016 ALLMR(CRI)JOURNAL459 ALLAH