2006 (2) TMI 692

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....ings initiated by the respondent/complainant herein for the offence under Section 138 of the Negotiable Instruments Act. 3. The respondent/complainant has lodged a complaint alleging that the first petitioner/first accused-Company borrowed a sum of Rs. 2,15,000/- for the development of the said Company and the third and fourth petitioners/third and fourth accused, being the Directors of the said Company, issued a cheque dated 10.12.2004 in favour of the respondent/complainant for a sum of Rs. 2,15,000/- to discharge the said loan. The second petitioner/second accused, who is the Managing Director and the third petitioner and fourth petitioners/third and fourth accused, who are the Directors of the said Company, are incharge of the conduc....

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....ire amount payable to the complainant was fully repaid by the accused. The last ground raised in the petition is that the respondent/complainant misused one of the cheques and fabricated the amount mentioned therein. 8. Learned counsel for the accused would submit that the cause of action to file the complaint as per Section 138(c) of the Negotiable Instruments Act would arise only on the expiry of 15 days time given thereunder for settling the amount under the cheque by the accused. 9. Learned counsel for the respondent would submit that it is now well settled that the complaint preferred before the expiry of 15 days time granted for settlement of the dues by the accused is sustainable if the Judicial Magistrate takes cognizance of t....

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....le Supreme Court dealt with a similar question that has arisen in this case and held categorically as follows:-   Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. 14. It is relevant to refer to Section 138(c) which reads as follows:-   Section 138(c) : The drawer of such cheque fails to make the payment o....

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....vailed by the accused to settle the dues, but the learned District Munsif-cum-Judicial Magistrate, Mettupalayam, has taken cognizance of the complaint presented by the complainant well after the expiry of the 15 days time granted under the statutory notice to settle the amount due to the complainant. So it is found that the cognizance of the complaint has been taken only after the expiry of 15 days time granted to the drawer. 18. Under the above circumstances, the Court finds that the complaint which was taken cognizance by the learned District Munsif-cum-Judicial Magistrate, Mettupalayam is not hit by the above proviso. Further, the Hon'ble Supreme Court of India has also declared that the complaint which was taken cognizance by the....