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TMI Blog1996 (4) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 13-5-1991. The appellant, thereafter issued notice on 25-5-1991 through registered notice requiring the respondent to arrange payment. The said notice was returned to the appellant by the postal authorities stating that the respondent refused to accept the notice on 27-5-1991. The appellant filed criminal complaint before the II Additional Munsif Magistrate, Chirala on 3-6-1991. From the docket sheet of the Court below, it is seen that the learned Magistrate examined the complainant on 4-6-1991 and adjourned the case for hearing on 27-6-1991. Thereafter the complaint was taken on file in C.C. No. 108/91 on 5-7-1991 and summons were issued on 27-8-1993, the accused was acquitted. Against the said order the present appeal has been preferred by the appellant. The learned Magistrate held that the cause of action for filing the complaint under Section 142 of the Act arose only on 12-6-1991 and since the complaint was filed during the pre-offence period, the accused cannot be found guilty of the offence under Section 138 of the Act. 3. Before dwelving into the legal aspects, it is necessary to extract Section 138 and Section 142 of the Act. Section 138 : Dishonour of chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary : (a) the cheque must have been issued in favour of the payee, (b) that the cheque should have been returned by the Bank unpaid, because the amount of money standing to the credit of the account is insufficient or it exceeds the amount arranged, (c) that the cheque should have been presented within a period of six months from the date on which it is drawn, (d) that the payee should have given a notice of dishonour to the drawer within 15 days of the receipt of the information by him from the Bank regarding the return of the cheque and that the drawer should have failed to make the payment within 15 days of the receipt of the notice. Under Section 142, the Magistrate is empowered to take the cognizance of any offence punishable under Section 138 only on a complaint in writing made by the payee provided that such complaint is made within one month from the date on which the cause of action arises under Clause (c) of proviso to Section 139. 5. As already stated, the said proviso relates to failure of the drawer to make the payment to the payee the amount of money covered by the cheque which was dishonoured by the bank within 15 days from the receipt of the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be treated as within time. Only, the aspect of the limitation was considered by the learned Judge. 9. In Prakash Chand Case (1994 (1) ALT 510) (cited supra), the complaint was filed by the drawer against the payee before the expiry of 15 days from the date of receipt of the notice. The learned Judge held that the penal provision has to be construed strictly. Since 15 days time allowed under Section 138(c) had not expired, the complaint before the Magistrate by the drawer was pre-mature and accordingly the criminal proceedings were quashed. The learned Judge further held even if the cognizance was taken of such a complaint which was filed within 15 days of the receipt of the notice, that cannot be a relevant consideration for construing the penal provision. 10. Thus, both the cases travel in a different direction and the attack was on different grounds. While the former case decided the limitation for filing a complaint before the Magistrate under Clause (b) of Section 142, the latter case related to the maintainability of the complaint, when such a complaint was made by the payee within a period of 15 days from the date of receipt of the notice by the drawer under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint shall examine the complainant on oath and also the witnesses present, if any. The object of examination of the complainant under Section 200 is to ascertain and satisfy whether there was a prima facie case against the person accused of an offence in the complaint (See : Nirmal Jith Singh Hoom v. State of West Bengal, [1973]2SCR66 . 15. Under Section 138, until and unless the criteria laid down therein are complied with, it would not constitute an offence. Proviso (c) clearly stipulates that the Section does not apply unless the drawer of the cheques fails to make the payment to the payee within 15 days of the receipt of the said notice. Thus, the payee has been given liberty to make the payment within 15 days of the receipt of the notice even though the cheque was returned by the Bank unpaid. Hence, the reading of Proviso (c) to Section 138 clearly denotes that it would not be an offence if the drawer pays the amount within a period of 15 days as a specified therein. In such circumstances, there could not have been any complaint alleging the violation of Section 138. The pre-offence period granted to the payee should be construed strictly, otherwise the very purpose of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Court by way of complaint in writing. Apart from the original complaint which does not disclose any offence, there is no further complaint. As rightly pointed out by the learned Additional Public Prosecutor, when the special law specifies not only the ingredients of the offence but also the procedure, the requirements have to be strictly complied with. Hence, we are of the opinion that the Court cannot proceed with the case even after the lapse of time as prescribed by Section 138(C) of Negotiate Instruments Act. 17. We are constrained to observe that if the Magistrate had applied his mind to the question whether the offence under Section 138 is made out as per the allegation in the complaint and rejected the complaint at the threshold itself, the delay and unnecessary controversy would have been avoided. The complainant would have known where he stands and he would have preferred a fresh complaint on the expiry of 15 days. Inasmuch as the condition precedent for taking cognizance is the prima facie disclosure of offence based on the allegations in the complaint itself and as the offence was not made out on the date of taking the complaint on file and examining the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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