Section 138 read with Section 142 of Negotiable Instruments Act, 1881 – Section 482 0f Code of Criminal Procedure – Cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, taken on the basis of a cause of action that has not accrued at the time of making the complaint but has accrued at the time of taking cognizance – whether valid?
Brief facts
The cheques issued by the respondent in favour of the appellant have been dishonored, subsequent to which the appellant has served on the respondent, a notice as required under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to “Act”).
Further, the appellant has filed a suit against the respondent before the expiry of fifteen days of the service of notice (a requirement to be satisfied as per Sec. 138 of the Act for considering an offence to have been committed). Further the respondent has not paid the amount even till the date of the hearing i.e., date of taking cognizance.
The question that has arisen is “can cognizance of an offence punishable under Section 138 of the Act be taken on the basis of a cause of action which has not yet accrued at the time of making the complaint but has accrued at the time of taking cognizance thereof? Further, if the answer to the above is no, then can a complaint be filed again in spite of the fact that the period of 1 month as stipulated under Sec. 142 of the Act, has expired.”
Initially the Court of Additional Civil Judge, UP has taken cognizance of the case and issued summons to the respondent. Subsequently the respondent has assailed the order in a petition under Sec. 482 of the Code of Criminal Procedure before the High Court of Allahabad which has quashed the complaint on the ground that the complaint was premature.
Then the appellant has appealed against the order of the High Court in the Supreme Court which is the present case.
Case Decided by
T.S. Thakur & Gyan Sudha Misra, JJ.
Decision & Reason
The complaint filed by the appellant is plainly premature and a premature complaint is no complaint in the eyes of law on the basis of which no cognizance could be taken.
However, there have been different clarifications given earlier by the various courts on the very matter, some supporting such complaints and some against such complaints, which lead the Judges in the present case to deem fit to refer the same to a Three-Judge Bench of the Supreme Court to be constituted by the Chief Justice.