2001 (12) TMI 904 - HC - Indian Laws

Summary

Issues:
1. Premature filing of complaint under Section 138 of Negotiable Instruments Act.
2. Interpretation of the time limit for taking cognizance under Section 138 of Negotiable Instruments Act.

Analysis:

Issue 1: Premature filing of complaint under Section 138 of Negotiable Instruments Act
The case involved a complaint filed against the opposite party under Section 138 of the Negotiable Instruments Act. The complainant alleged that the cheques issued by the opposite party were dishonored due to the closure of the issuer's account. The complaint was filed on 26.6.1998 after sending a notice on 13.6.1998. The Additional Chief Metropolitan Magistrate summoned the opposite party based on the complaint. The opposite party objected to the summoning order, claiming that the complaint was premature as it was filed before the expiry of 15 days from the date of the notice. The objection was rejected by the Additional Chief Metropolitan Magistrate, but the Xth Additional Sessions Judge allowed the revision, stating that the complaint was premature and not maintainable.

Issue 2: Interpretation of the time limit for taking cognizance under Section 138 of Negotiable Instruments Act
The key contention was whether the filing of a complaint before the expiry of 15 days from the date of the notice rendered it premature and not maintainable. The counsel for the applicant argued that there is no bar in filing a complaint before the expiry of 15 days, as filing a complaint and taking cognizance are distinct stages. Citing the Supreme Court decision in Narsingh Das Tapadia v. Goverdhan Das Pattani, it was emphasized that taking cognizance is different from filing a complaint. The Supreme Court clarified that if a complaint is found to be premature, it can await maturity or be returned to the complainant for filing later. In this case, although the complaint was filed on 26.6.1998, cognizance was taken on 18.11.1998, which was after 15 days from the notice date of 13.6.1998. Therefore, the revision by the Additional Sessions Judge was deemed incorrect, and the order was set aside.

In conclusion, the High Court allowed the revision, quashed the order of the Additional Sessions Judge, and restored the order of the Additional Chief Metropolitan Magistrate. The Magistrate was directed to proceed with the case in accordance with the law, emphasizing the distinction between filing a complaint and taking cognizance under Section 138 of the Negotiable Instruments Act.