Bapulal vs Krapachand Jain

S.L. Kochar, J.

This criminal revision is directed against the order dated 2-7-2002 passed by the learned Sessions Judge, Shajapur in Cr. Rev. No. 161/2001 thereby setting aside the order passed by the learned Chief Judicial Magistrate, Shajapur on 6-7-2001 in Cr. Case No. 9/2000 whereby the learned Chief Judicial Magistrate refused to register the complaint u/s 138 of the Negotiable Instrument Act (hereinafter referred to as ''the Act'') against the applicant/accused Bapulal.

Briefly stated, the facts of the case are that the accused issue a cheque bearing No. 011016, dated 8-11-99 for a sum of Rs. 21,060/- in the name of complainant Krapachand on Union Bank of India, Shajapur Branch with a request to get it encashed after five months. The complainant/N.A. presented the said cheque to the Bank for encashment on 3-5-2000, but on account of shortage of funds in the account of the accused/applicant, the said cheque returned dishonoured. On 4-5-2000, the complainant informed the accused about dishonour of the cheque by Registered Post and demanded payment of money within five days. On 8-5-2000, the complainant lodged the complaint u/s 138 of the Act. On 5-1-2001, the learned Chief Judicial Magistrate recorded the statements of the complainant and his witness Bank Manager under Sections 200 and 202 of the Code of Criminal Procedure. Learned Magistrate found that the registered notice sent by the complainant to the accused was received by him between 13-5-2000 and 17-5-2000 and the complainant should have been filed within 15 days from the date of receipt of the notice by the accused. On this ground, the learned Magistrate refused to register the case and dismissed the complaint of the non-applicant.

Against this order, the non-applicant went up in revision and the learned Revisional Court set aside the order of the Trial Court and remanded the case. Hence, this revision.

In have heard, Smt. Waghmare, learned Counsel for the applicant and Shri N.P. Pandey, Advocate appearing for the non- applicant and perused the record.

The learned Counsel appearing for the applicant, relying on the judgment passed by the Division Bench of Bombay High Court in Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and Anr. (Cases on dishonour of cheques passed in Cr. Writ Pet. No. 561/92, decided on 29-7-92), submitted that filing of complaint before expiry of 15 days when no cause of action arose on the date, the complaint as such, was not maintainable as the cause of action arises on the expiry of 15 days as specified in the notice. She submitted that in the present case, cheque was issued on 8-11-99 and the same was presented on 3-5-2000. On the same day, the complainant received information of dishonour of cheque. Therefore, he issued notice on 4-5-2000, but without waiting for statutory period of 15 days, as per provision u/s 138 read with Section 142 of the Act, filed a complaint on 8-5-2000 though on that date, cause of action did not arise. Therefore, the complaint was premature and liable to be dismissed. She supported the order of dismissal by the learned Chief Judicial Magistrate, dated 6-7-2001.

On the other hand, learned Counsel for the non- applicant/complainant supported the order passed by the Revisional Court on the strength of recent judgment passed by the Supreme Court in the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani and Another, ) and Smt. Hem Lata Gupta Vs. State of U.P. and Another, All. High Court). The Supreme Court in the case of Narsinghdas Tapadia (supra) has held that Section 142 of the Act prescribes a period within which the complaint can be filed from the date of cause of action arising under Clause (c) of the proviso to Section 138 of the Act. But, no period is prescribed before which, the complaint cannot be filed and if filed, not disclosing the cause of action in terms of Clause (c) of the Proviso to Section 138 of the Act. The Court may not take cognizance till the time cause of action arises to the complainant. In this Case, the Supreme Court has held that without having cause of action, premature complaint can be filed but, cognizance cannot be taken by the concerned Court. If cognizance has been taken after arising of cause of action, there is no illegality committed by the Trial Court and the complaint cannot be dismissed only on this score that the same was filed before arising of cause of action.

Following this judgment, the Allahabad High Court has in similar situation, in case of Smt. Hemlata Gupta (supra), ordered for maintainability of the complaint because, the cognizance was taken by the Court when the cause of action arose though the complaint was filed in a premature stage.

In the present case also, the situation is the same. Though the complaint was filed on 8-5-2000 when the cause of action was not arising obviously because the notice was sent demanding payment of cheque amount on 4-5-2000 by the non- applicant/complainant. But, the cognizance was taken by the learned Trial Court on 5-1-2001. On this date, the statements of the complainant Krapachand and his witness Azeem were recorded under Sections 200 and 202 of the Code of Criminal Procedure and thereafter on 7-3-2001 the learned Trial Court heard the Counsel for the complainant, for registration of the complaint and issuance of process. Learned Counsel for the applicant has filed the certified copy of the order sheet and perusal thereof is revealing this fact and the same has been considered in Para 7 of the Revisional Court''s order.

In view of the Apex Court''s judgment and in the facts and feature of the case, though the complaint was premature, but the cognizance was taken by the Trial Court as per provision u/s 142(b) of the Act, therefore, the order of dismissal passed by the learned Magistrate dated 6-7-2001 on the ground that the complaint was filed in a premature stage, was rightly set aside by the Revisional Court.

In the result, this revision fails and is hereby dismissed. The order dated 2-7-2002 passed by the Revisional Court is upheld setting aside the order dated 6-7-2001 passed by the Trial Court.