1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NO. 31 & 32 OF 2009 Shri John Fernandes .... Appellant V/s Shri Dilip Tukaram Dessai & Anr. .... Respondents Mr. Amey Kakodkar, Advocate for the Applicant. Mr. S.S. Kakodkar, Advocate for the Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 8 th APRIL, 2009 ORDER: These are appeals filed by the complainant against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 ('Act', for short). 2. Both the appeals arise from two cases which pertain to dishonour of two cheques in the sum of Rs. 7 lacs each, both dated 12/10/2007, drawn on State Bank of India, Sanvordem. Both the cheques when presented for payment were returned with remark, “funds insufficient” as there was no balance in the account of the accused. The complainant addressed a legal notice dated 1/11/2007, regarding which there is also no dispute, calling upon the accused, to pay the amount due under the said notice within a period of 15 days, which notice the accused received on 20/11/2007. The complaints 2 were filed prematurely on 5/12/2007 and, therefore, came to be dismissed by the learned JMFC, by orders dated 27/08/2008 and 29/09/2008. 3. The learned trial Court in acquitting the accused has held that the ratio in the case of Narsingh Das Tapadia V/s. Goverdhan Das Partani & Anr. (AIR 2000 SC 2946) was inapplicable as in that case the complaint was returned as it was filed before the expiry of 15 days and the complaint was filed again thereafter. 4. Shri Amey Kakodkar, the learned Counsel appearing on behalf of the appellant/complainant relying on the aforesaid decision in the case of Narsingh Das Tapadia V/s. Goverdhan Das Partani & Anr. (supra) and, particularly, para 8 thereof submits that what is material is the date when the Court took cognizance of the offence and which according to learned Counsel is 22/01/2007 and not when the complaint was filed. On the other hand, Shri S.S. Kakodkar, the learned Counsel on behalf of the respondent/accused has also relied on the same judgment, particularly para 11 thereof and has submitted that that judgment has been rightly distinguished by the learned trial Court. Learned Counsel has further submitted that in the case at hand cognizance was taken on 20/11/2007 and further submits that offence would have been committed by the accused only in case the accused had neglected or refused to make payment on 5/12/2007, that being the last date given to the 3 accused to comply with the requirements of the notice. 5. Shri S.S. Kakodkar has also placed reliance on the decision of this Court in the case of Tajuddin M. Somji V/s. M/s. Jivrai Raoji Gandhi & Jivraj Raoji & Anr. (2008 (4) AIR Bom R 608), wherein this Court has observed in para 5(A) that Section 138 of the Act stipulates; (i) that the cheque must be presented to the Bank within a period of 6 months from the date on which it is drawn; (ii) that the payee makes a demand of the amount by giving notice in writing to the drawer of the cheque within 30 days of the receipt of information of dishonour of the cheque; & (iii) that the drawer of the cheque fails to make payment within 15 days of the receipt of the notice. It is only when these 3 conditions are satisfied that the provisions of Section 138 would be attracted. 6. The learned Single Judge has referred to a Division Bench judgment of this Court in the case of Rakesh V/s. Narayan (1993 Cr.L.J. 680) and has held that when a complaint is filed within a period of 15 days after the notice is received by the drawer of the cheque, it is not maintainable. 7. In para 8 of the judgment in Narsingh Das Tapadia V/s. Goverdhan 4 Das Partani & Anr. (supra), the Apex Court stated as follows; 8. “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 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 complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon 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) of issuing a search warrant, he cannot be said to have taken cognizance of the offence. 8. In para 11 of the same judgment, the Apex Court stated as follows; 11. In the instant case mere presentation of the complaint on 8/11/1994 when it was returned to the complainant/appellant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the magistrate taking cognizance within the meaning of Section 142 of the Act. The High Court appears to have committed not only mistake of law but a mistake of fact as well. No cognizance was taken on 8/11/1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17/11/1994. The learned Judge of the High Court, without reference to various provisions of the Act and the Code of Criminal Procedure, wrongly held thus: “The date of filing i.e. 8/11/1994 in this case is crucial. The return of the complaint filed by the respondent to comply with some objections and subsequent filing on 17/11/1994 in this case does not have any effect. Therefore, the complaint is premature and is liable to be dismissed.” 9. Although the Hon'ble Supreme Court from time and again has stated that there are several concomitants which are required to be complied with, before an offence is stated to have been committed under Section 138 of the 5 Act, it is the last which makes the offence complete i.e. failure to make payment within 15 days from the date of receipt of the notice. In case payment is made within the time stipulated in the notice then there is no offence committed. This is a view held by this Court in Criminal Appeal No. 22/2005 in the case of Shri William Rosario Fernandes V/s. M/s. Cabral & Co., & Anr. wherein this Court observed as follows: “19. In my humble view, no drawer of a cheque can be absolved of his liability under Section 138 of the Act if he makes the payment after the notice and before the filing of the complaint and this, I say on the basis that the offence gets completed on the failure of the drawer of the cheque to comply with the notice of the demand as contemplated by proviso (b) to Section 138 of the Act. Any subsequent payment by the drawer of the cheque after failure to comply with the notice either before or after filing the complaint, could be taken only towards the mitigation of the sentence to be imposed upon the drawer of the cheque i.e. the accused in a given case. This conclusion can be safely arrived by taking note of the observations of the Supreme Court in the three cases referred to herein above, namely M/s. Kusum Ingots & Alloys Ltd. V/s. M/s. Pennar Peterson Securities Ltd. & Ors., (supra), Para 10 of K.R. Indira V/s. Dr. G. Adinarayana (supra) as well as Rajneesh Aggarwal V/s. Amit J. Bhalla, (supra). The said observations of the Supreme Court in the case of Suman Sethi V/s. Ajay K. Churiwal & anr. (supra), reproduced in K.R. Indira V/s. Dr. G. Adinarayana (supra), has therefore, got to be considered as mere casual observations not having the force of ration of dictum as laid down by the Supreme Court. The contention made on behalf of the accused therefore has got to be rejected. That apart, in the case at hand, the payment tendered on behalf of the accused vide letter dated 04/05/2002 was not accepted by the Complainant as it did not comply with the stipulations of the Complainant's letter dated 30/04/2002 and therefore it could not be said that the accused had made payment in this case, as otherwise sought to be contended o n behalf of the accused. The payment was made only after filing of the complaint and which was accepted by the Complainant without prejudice to his rights.” 6 10. In this case, the accused has time to comply with the notice up to 5/12/2007 i.e. nearly 8 days before filing of the complaint by which the accused could have made the payment. On 27/11/2007 when the complaint was filed, obviously the accused has not committed any offence and if that be so, and if there was no offence committed by the accused, no cognizance could have been taken of any offence against the accused either on 22/01/2007 as contended by learned Counsel on behalf of the complainant or on 20/11/2007 as contended by learned Counsel on behalf of the accused. What is material is the date of filing of complaint, for the complaint is filed because an offence is committed. In this case no offence was committed on the date the complaint was filed. In the light of that, the acquittal of the accused cannot be faulted. Appeals do not deserve to be admitted and therefore are hereby dismissed. N.A. BRITTO, J. NH/-