TaxTMI 
TaxTMI 
2012 (12) TMI 154
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....mpanies Act, 1956, presently under liquidation and official liquidator has been appointed by the High Court, which has alleged to have issued the cheques to respondent No.1. (b) Respondent No.1 is the complainant and the manufacturers of Partially Oriented Yarn (POY) and other textile goods. From time to time, Respondent No. 3 used to place orders for the supply of POY to Respondent No. 1 and had issued 57 cheques between 02.12.1997 to 09.03.1998 for the payment of the same. (c) The aforesaid cheques were deposited by the complainant on 05.04.1998 and were returned by the Bank on 06.04.1998 with the remark "exceeds arrangement". Pursuant to the same, Respondent No.1 issued a notice dated 16.04.1998 to the appellants and demanded the aforesaid amount for which they replied that they have not received any statement of accounts maintained by the complainant regarding the transactions with the accused. In addition to the same, Respondent No.3, vide letter dated 29.05.1998, made various claims for the rate difference, discounts etc., in respect of the transactions, however, Respondent No.1 filed a complaint on 03.06.1998 being Complaint No. 1866/SS of 2007 (1866/MISC/1998) under S....
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....ing the same on merits. (i) Aggrieved by the said decision, the appellants have filed the above appeals by way of special leave before this Court. 4) Heard Mr. Bhagwati Prasad, learned senior counsel for the appellants and Mr. Uday U. Lalit, learned senior counsel for respondent No.1, Ms. Asha Gopalan Nair, learned counsel for respondent No.2 and Ms. Sangeeta Kumar, learned counsel for respondent No.3. 5) Mr. Bhagwati Prasad, learned senior counsel for the appellants after taking us through the relevant provisions of the Negotiable Instrument Act, 1881, the Code of Criminal Procedure, 1973 (in short 'the Code') and the order of the learned single Judge as well as the reference answered by the Division Bench raised the following contentions: i) the complaint under Section 141 in respect of dishonour of cheque under Section 138 of the Act without signature of the complainant is not maintainable; ii) there is no provision in the Act regarding verification. Even otherwise, the verification was signed by the complainant after expiry of the limitation period, hence, the impugned complaint is liable to be rejected; and iii) inasmuch as the Act is a speci....
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....tained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138." As pointed out, the controversy in our case, concentrates on construction of Section 142(a) of the Act and in particular phrase "a complaint in writing" employed therein. It provides that notwithstanding anything contained in the Code, no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a "complaint in writing" made by the payee or as the case may be the holder in due ....
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....except upon a complaint made by the payee or the holder in due course of the cheque. 7. The second is this: Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the NI Act is concerned such complaint shall be made within one month of the cause of action. The third is this: Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than the Indian Penal Code) such offence can be tried by any Magistrate. Normally Section 138 of the NI Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the NI Act says that for the offence under Section 138, no court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try the said offence. 8. Thus, the non obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a Magistrate of the First Class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chap....
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.... to us, the non obstante clause in Section 142(a) is restricted to exclude two things only from the Code i.e. (a) exclusion of oral complaints and (b) exclusion of cognizance on complaint by anybody other than the payee or the holder in due course. Section 190 of the Code provides that a Magistrate can take cognizance on a complaint which constitutes such an offence irrespective of who had made such complaint or on a police report or upon receiving information from any person other then a police officer or upon his own knowledge. Non obstante clause, when it refers to the core, restricts the power of the Magistrate to take cognizance only on a complaint by a payee or the holder in due course and excludes the rest of Section 190 of the Code. In other words, none of the other provisions of the Code are excluded by the said non obstante clause, hence, the Magistrate is therefore required to follow the procedure under Section 200 of the Code once he has taken the complaint of the payee/holder in due course and record statement of the complainant and such other witnesses as present at the said date. Here, the Code specifically provides that the same is required to be signed by the compl....
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.... example, Sections 61, 70, 154, 164 and 281 are reproduced below: "61. Form of summons. Every summons issued by a court under this Code shall be in writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the court. 70. Form of warrant of arrest and duration. (1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court. (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. 154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Gover....
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.... made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the 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. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the 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. 16) It is the contention of Mr. Bhagwati Prasad, learned senior counsel for the appellant that the limitation period expired on the date of verification and the complaint cannot be entertained. In view of the above discussion, we are unable to accept the said contention. 17) In Japani Sahoo vs. Chandra S....