2012 (12) TMI 154 - SC - Companies Law

Complaint u/s 138 of Negotiable Instruments Act, 1881 - complaint without signature when subsequently verified by the complainant - maintainability - period of limitation - held that - Writing as defined by General Clauses Act requires that the same is representation or reproduction of words in a visible form and does not require signature. - Signature within the meaning of writing would be adding words to the section which the legislature did not contemplate. Requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by the complainant. In Japani Sahoo vs. Chandra Sekhar Mohanty, 2007 (7) TMI 572 - SUPREME COURT held that so far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates . This Court further held that the complainant has no control over those proceedings . Taking note of Sections 468 and 473 of the Code, in para 52, this Court held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court . Period of Limitation - held that - Crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the present case complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused u/s 138/142 of the Act. Complaint u/s 138 of the Act without signature is maintainable when such complaint is verified by the complainant and the process is issued by the Magistrate after due verification. The prosecution of such complaint is maintainable and we agree with the conclusion arrived at by the Division Bench of the High Court. Consequently, both the appeals fail and are dismissed.

Summary

Issues Involved:
1. Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, without the signature of the complainant, is maintainable when such complaint is subsequently verified by the complainant.
2. Whether the absence of a signature on the complaint is a mere irregularity that can be cured subsequently and whether such subsequent amendment would relate back to the date of filing of the complaint or be hit by the Law of Limitation.

Issue-Wise Detailed Analysis:

1. Maintainability of Complaint Without Signature:
The primary issue was whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, is maintainable without the signature of the complainant if it is subsequently verified. The court examined the definition of "complaint" under Section 2(d) of the Code of Criminal Procedure, 1973, which does not explicitly require a signature. The court emphasized that the legislative intent behind the Act was to ensure the credibility of cheques and facilitate their use. The court also referenced Section 142 of the Act, which mandates that a complaint must be in writing but does not explicitly require a signature. The court concluded that the requirement is that the complaint must be in writing, and the verification statement, which is signed by the complainant, safeguards the interests of the accused. Thus, the absence of a signature on the initial complaint does not render it non-maintainable if it is subsequently verified and signed by the complainant.

2. Irregularity and Law of Limitation:
The court also addressed whether the absence of a signature is a mere irregularity that can be cured subsequently and whether such an amendment would relate back to the date of filing the complaint or be affected by the Law of Limitation. The court referred to the decision in Japani Sahoo vs. Chandra Sekhar Mohanty, which held that for computing the period of limitation, the relevant date is the date of filing the complaint, not the date of taking cognizance by the Magistrate. The court reiterated that the crucial date for computing the period of limitation is the date of filing the complaint. In this case, the complaint was filed within the limitation period, and the subsequent verification and signing by the complainant did not affect its validity. Therefore, the court held that the complaint without a signature is maintainable when verified later, and such prosecution is valid.

Conclusion:
The Supreme Court upheld the decision of the Division Bench of the High Court, affirming that a complaint under Section 138 of the Negotiable Instruments Act, 1881, without a signature is maintainable if subsequently verified by the complainant. The court dismissed the appeals, confirming that the prosecution of such a complaint is valid.