1996 (4) TMI 535 - HC - Indian Laws

Early Complaints under Section 138 of Negotiable Instruments Act Invalid - High Court Decision

N. Venkata Sivaram Prasad Versus Rajeswari Constructions

N. Venkata Sivaram Prasad Versus Rajeswari Constructions - TMI Issues Involved:1. Whether the Court can proceed with the case if it comes to its knowledge that the offence is committed during the pendency of the premature complaint.Detailed Analysis:Issue 1: Whether the Court can proceed with the case if it comes to its knowledge that the offence is committed during the pendency of the premature complaint.1. Facts of the Case:- The appellant (complainant) filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.- The respondent issued a cheque for Rs. 18,000/- dated 30-4-1991 in favor of the appellant, which was dishonored on 7-5-1991. The appellant learned of the dishonor on 13-5-1991.- The appellant issued a notice on 25-5-1991, which was returned as refused on 27-5-1991. The appellant filed the complaint on 3-6-1991.- The learned Magistrate examined the complainant on 4-6-1991 and adjourned the case for hearing on 27-6-1991. The complaint was taken on file on 5-7-1991, and summons were issued. The accused was acquitted on 27-8-1993.2. Legal Provisions:- Section 138 of the Negotiable Instruments Act, 1881: Specifies the conditions under which the dishonor of a cheque constitutes an offence.- Section 142 of the Negotiable Instruments Act, 1881: Provides the conditions for taking cognizance of offences under Section 138.3. Key Legal Arguments:- Appellant's Argument: The complaint, although filed before the expiry of 15 days after the service of the notice, should be considered valid if by the date of taking cognizance and issuing summons, the 15-day period has expired.- Respondent's Argument: The offence under Section 138 is complete only if the drawer fails to pay the amount within 15 days of the receipt of the notice. Filing a complaint before this period renders it premature, and the Magistrate has no jurisdiction to entertain such a complaint.4. Court's Analysis:- The Court examined the legal requirements under Sections 138 and 142 of the Negotiable Instruments Act.- The Court emphasized that the offence under Section 138 is not constituted unless the drawer fails to make the payment within 15 days of receiving the notice.- The Court referred to previous judgments, including those in M/s. Mahalakshmi Enterprises v. Sri Vishnu Trading Company and P. Prakas Chand v. V. V. Rama Rao & Company & State, to illustrate the differing views on the matter.5. Conclusion:- The Court concluded that the Magistrate should not have taken cognizance of the complaint filed before the offence was complete.- The Court stated that the complaint filed before the expiry of the 15-day period is premature and invalid in the eye of the law.- The Court observed that the Magistrate should have dismissed the complaint under Section 203, Cr.P.C., or returned it at the threshold.6. Final Judgment:- The Court held that the Magistrate cannot proceed with a case based on a premature complaint.- The appeal was dismissed, and the acquittal of the accused was upheld.Separate Judgments:- No separate judgments were delivered by the judges in this case.Summary:The Andhra Pradesh High Court ruled that a complaint filed under Section 138 of the Negotiable Instruments Act before the completion of the 15-day period stipulated for the drawer to make payment is premature and invalid. The Court emphasized that the Magistrate should not take cognizance of such complaints and should dismiss them if they do not disclose an offence as per the legal requirements. The appeal was dismissed, and the acquittal of the accused was upheld.