LexYOGENDRA PRATAP SINGH versus SAVITRI PANDEY & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B [2012] 5 S.C.R. 192 YOGENDRA PRATAP SINGH V. SAVITRI PANDEY & ANR. (Criminal Appeal No. 605 of 2012) APRIL 03, 2012 [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.) Negotiable Instruments Act, 1881 - ss. 138(c) and 142(b) - Offence punishable u/s. 138 - Whether cognizance of an C offence could be taken on the basis of a complaint filed before expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of s. 138(c) - If no, whether the complainant could be permitted to present the complaint again notwithstanding the fact that the o period of one month stipulated uls. 142 (b) for the filing of such a complaint has expired - Conflict in the judicial pronouncements - Matter referred to the larger bench - Reference to larger bench. E Respondent issued four cheques in the favour of appellant and the same were dishonoured when presented for encashment. The respondent was served with the notice on 23.009.2008 calling upon him to pay the amount. On 07.10.2008, which is before the expiry of the stipulated period of 15 days, the appellant filed a F complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent in the court of Additional Civil Judge, Magistrate. The Magistrate took cognizance of the offence on 14.10.2008 and issued summons to the respondent. The respondent filed a G petition u/s. 482 Cr.P.C, challenging the said order. The High Court quashed the order passed by the Magistrate taking cognizance of the offence punishable uls. 138 of the Act since the complaint having been filed within 15 H 192 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 193 ANR. days of the service of the notice, was premature and the A order passed by the Magistrate taking cognizance of the offence on the basis of such a complaint is legally bad. Therefore, the appellant filed the instant appeal. B The questions which arose for consideration in the instant appeal were whether cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 could 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 C drawer of the cheque in terms of Section 138 (c) of the Act and, if no, whether the complainant could 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? Referring the matter to larger Bench, the Court HELD: 1.1 Proviso to Section 138 of the Negotiable Instruments Act, 1881 is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever D E F is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of G the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the H 194 SUPREME COURT REPORTS [2012] 5 S.C.R. A cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said ta have been committed B by the person issuing the cheque. [Para 5) [200-F-H; 201- A-C] 1 .. 2 Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts C with a non-obstante clause. It provides that 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 and such complaint is made within one month of the date on which the cause of action arises under clause D (c) of the proviso to Section 138. In
Excerpt shown. Read the full judgment & AI analysis in Lexace.