The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4242 of 2023 Pramod Kumar Panda …. Petitioner Mr. M.K. Mohapatra, Advocate -versus- State of Odisha & another …. Opp. Parties Mr. S.R. Roul, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 21.11.2023 01. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this application the Petitioner seeks to challenge the order dated 03.08.2023 passed by the learned Sessions Judge, Kalahandi at Bhawanipatna in Criminal Revision No.8 of 2023. 3. The background facts of the case are that, Opposite Party No.2 filed a complaint petition before the learned S.D.J.M., Bhawanipatna registered as I.C.C. Case No.35 of 2017 alleging therein that the Petitioner had issued two cheques in lieu of the rent for an Excavator which he had taken for executing his work on hire. As against the charges the Petitioner issued two cheques issued bearing Nos. 431044 and 431846 dated 10.06.2017, each for rupees one lakh. The holder of the Cheques, i.e. the Complainant-Opp.Party No.2 presented the said cheques before the Payee Branch. The cheques got dishonoured due to insufficiency of fund. The Opposite Party No.2 sent Pleader’s Notice to the Petitioner vide Notice dated 21.09.2017 in compliance with the statutory provision enumerated under the Negotiable Page 1 of 8 // 2 // Instruments Act, 1881 (in short “N.I. Act”). The notice was served upon the Petitioner on 25.09.2017, whereas the Opposite Party- complainant filed the complaint Petition on 09.10.2017, i.e. before expiry of 15 days of the demand notice. After filing of the complaint, the learned court below took cognizance of the offence under Section 138 of the N.I. Act and issued summons on the Petitioner. The Petitioner challenging the cognizance order moved this Court in CRLMC No.1503 of 2018, which was disposed of by this Court vide order dated 02.12.2022 asking the Petitioner to raise all his grounds of challenge at the time of framing of charge before the trial court. While disposing the CRLMC, this Court also pleased to direct the learned court below that in case any such application is filed by the petitioner, to consider the same on merit and pass appropriate order in accordance with law. 4. Pursuant to the aforesaid direction of this Court, the petitioner moved a motion before the learned court below under Section 245 Cr.P.C. for discharge, which, having heard by the learned court below, rejected vide order dated 15.02.2023. Being aggrieved by the said order of rejection, the Petitioner preferred Civil Revision No.8 of 2023 before the learned Sessions Judge, Kalahandi at Bhawanipatna, who having heard the matter dismissed the Revision on contest vide order dated 03.08.2023, which is impugned herein. 4. Learned counsel for the Petitioner submitted, inter alia, that the observation made by this Court in CRLMC No.1503 of 2018 does not hold good in view of the subsequent decision of the Apex Court in the matter of Yogendra Pratap Singh vs. Savitri Pandey and Another, Page 2 of 8 // 3 // (2014) 10 SCC 713. According to the learned counsel, the decision in the matter of M/s. Pragati Ventura Pvt. Ltd. vs. M/s. Jasmine Road Lines, (2014) 59 OCR 201, decided by this Court in reference to the decision of the Apex Court in the matter of Narsingh Das Tapadia vs. Goverdhan Das Partani, (2000) 7 SCC 18, has been varied in the said judgment in the matter of Yogendra Pratap Singh (supra) by a three Judges’ Bench. In view of the above position of law, learned counsel for the Petitioner submits that the impugned order passed by the learned Sessions Judge, Kalahandi in Criminal Revision No.8 of 2023 pursuant to the order passed by the learned S.D.J.M., Bhawanipatna dated 15.02.2023 in I.C.C. Case No.35 of 2017 is required to be set aside. 5. Learned counsel for the State on the other hand did not quarrel the position of law, as submitted by the learned counsel for the Petitioner. 6. The Apex Court in the matter of Yogendra Pratap Singh (supra) formulated the following questions and answered on the same :- “(i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned ? And, (ii) If answer to question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month Page 3 of 8 // 4 // stipulated under Section 142(b) for the filing of such a complaint has expired?” The Hon’ble Supreme Court answered the questions as follows:- “36. Can an offence under Section 138 of the N.I. Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines ‘complaint’. According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the N.I. Act unless the period of 15 days has elapsed. Any compliant before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the N.I. Act, inter alia, creates a legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the N.I. Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque. A complaint filed before expiry of 15 days from the Page 4 of 8 // 5 // date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint, which does not disclose the cause of action, the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the N.I. Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been features of Section 138 of the N.I. Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd; AIR 2000 SC 954 and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the N.I. Act. We, therefore, do not approve the view taken by this Court in Narsingh Das Tapadia; (2000) 7 SCC 183 and so also the judgments of various High Courts following Narsingh Das Tapadia that if the complaint under Section 138 is filed before expiry of 15 days from the date on which notice has been served on the drawer/accused, the same is premature and if on the date of taking cognizance a period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. Page 5 of 8 // 6 // imperative Rather, the view taken by this Court in Sarav Investment & Financial Consultancy; (2007) 14 SCC 753 wherein this Court held that service of notice in terms of Section 138 proviso (b) of the N.I. Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the in character, amount within 15 days was commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment & Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the N.I. Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. Our answer to question (i) is, therefore, in the negative. The other question is that if the answer to question (i) is in the negative, can be complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired. Section 142 of the N.I. Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the N.I. Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142 (b) begins from the Page 6 of 8 // 7 // date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the N.I. Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly.” 7. In view of the above, taking a cue from the principles enunciated as above, when the case in hand is examined, it is indeed clear that the complaint has been lodged before the expiry of the statutory period of 15 days. Needless to mention here that, the very intent and purport of the law enunciated in the statute is required to be adhered to in the manner stipulated therein. Keeping in view the aforesaid facts and circumstances and the law as laid down by the Apex Court, the impugned order passed by the learned court below will not sustain in the eye of law and the same is set aside. However, in view of the Page 7 of 8 // 8 // dictum enunciated by the Apex Court in the said decision in the matter of Yogendra Pratap Singh (supra), opportunity is granted to the Petitioner to file a fresh complaint before the competent court within one month from the date of this order and file an application for condonation of delay under Section 142 (1)(b) of the N.I. Act, where upon the concerned Court shall pass appropriate order in the matter of condonation of law after giving opportunity of hearing to the parties and to proceed in accordance with law taking into account the ratio decided in the aforesaid case. It shall be the duty to ensure delivery a copy of this order on the Opposite Party, so that he would be in a position to take steps in the matter as directed. 8. The CRLMC is accordingly allowed. Judge (Chittaranjan Dash) S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 24-Nov-2023 18:22:16 Page 8 of 8