NARSINGH DAS TAPADIA versus GOVERDHAN DAS PARTANI AND ANR.

Citation: [2000] SUPP. 3 S.C.R. 171 · Decided: 06-09-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

NARSINGH DAS TAPADIA 
A 
v. 
GOVERDHAN DAS PARTANI AND ANR. 
SEPTEMBER 6, 2000 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
B 
Negotiable Instruments Act, I 881 : Sections I 38(C)-Proviso and I 42. 
Cheque-Dishonour-Notice for repayment served on 26.10.1994-
Complaint under Section 138 filed on 8.J/.1994-Complaint returned as C 
defective-Complaint refiled and Court took cognizance on 17. l I. 1994-
Conviction by trial court upheld by Appellate Court-High Court setting 
aside conviction on the ground that complaint was pre-mature-Appeal 
· before Supreme Court-Held High Court erred in holding that complaint 
was. liable to be dismissed as pre-mature-Accused having paid the entire D 
amount sentence of imprisonment substituted with that of fine. 
Criminal trial-Court-Taking cognisance of offence-Meaning and 
scope of 
The respondent borrowed a sum of Rs. 2, 30,000 from the appellant and E 
issued a post dated cheque in his favour. When the cheque was presented for 
payment the same was dishonoured by the Bank due to insufficiency of funds. 
The notice demanding repayment served by the appellant and received by the 
respondent on 26th October, 1994 evoked no response. Consequently, the 
appellant filed a complaint under Section 138 of the Negotiable Instruments F 
Act, 1881 on 8.11.1994 but the same was returned as defective. When the 
complaint was refiled the trial court took cognizance on 17.11.1994. It 
convicted the respondent under Section 138 and sentenced him to simple 
imprisonment for six months. The Appellate Court confirmed the conviction 
and sentence passed by the trial court. On appeal the High Court set aside 
the conviction holding that the complaint filed against the respondent was pre- G 
mature. 
The High Court also held that as the notice was served on the respondent 
on 26th October, 1994, the appellant could not file the compJairit before the 
expiry of 15 days period. Against the decision of High Court appeal was 
171 
H 
172 
SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R. 
A preferred before this Court. 
B 
Allowing the appeal, the Court 
HELD: 1. The impugned judgment is based upon wrong assumptions of 
law and facts. Consequently, it is set aside. (177-E] 
2. The compliance of clause (c) of proviso to Section 138 of the Negotiable 
Instruments Act, 1881 enables the Court to entertain a complaint. Clause (b) 
of Section 142 prescribes a period within which the complaint can be filed 
from the date of the cause of action arising under clause (c) of the proviso to 
Section 138. No period is prescribed before which the complaint cannot be 
C filed, and if filed not disclosing the cause of action in terms of clause (c) of 
the proviso to Section 138, the Court may not take cognizance till the time 
the cause of action arises to the complainant. "Taking cognizance of an 
offence" by the court has to be distinguished from the filing of the complaint 
by the complainant. Taking cognizance would mean the action taken by the 
D Court for initiating judicial proceedings against the offender in respect of 
the offence regarding which the complaint is filed. Before it can be said that 
any Magistrate or Court has taken cognizance of an offence it must be shown, 
that he has applied his mind to the facts for the purpose of proceeding further 
in the matter at the instance of the complaint. If the Magistrate or the Court 
is shown to have applied the mind not for the purpose of taking action upon 
E the complaint but for taking some other kind of action contemplated under 
the Code of Criminal Procedure such as ordering investigation under Section 
156 (3) or issuing a search warrant, he cannot be said to have taken 
cognizance of the offence. [175-B-F] 
Narayandas Bhagwandas Madhavdas v. State of West Bengal, AIR 
F (1959) SC 1118 and Gopal Das Sindhi & Ors., v. State of Assam & Anr., AIR 
(1961) SC 986, referred to. 
3. Mere presentation of the complaint in the court cannot be held to 
mean, that its cognizance had been taken by the Magistrate. Ifthe complaint 
G is found to be pre-mature, 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 dismisse~ or confer any 
right upon the accused to absolve himself from the criminal liability for the 
offence committed. In the instant case mere presentation of the complaint on 
8.11.1994 when it was returned to the complainant/Appellant on the ground 
H t

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