IN THEfc-HIGH COURT OF CUSHATriSQARH AT BZLAS&UR. Cr.R. No. <e09 /2003. APPLICANTS : 1. BaJrangLal s/o Banwar.i Lal Jaln, aged abottt 33 years . 2. Krlshna Kumar s/o Banwari Lal iS'ala, aged about 30 years. ',1. Filed on.. by Shri.. ^ J^Jl..^^..-^ "^^JS'^^-- Advocate to D. R. [f v;,i^' £y> NON-APPLICANTS Botb r/o v.i.llage Main Road Raghtinathnagar, Tehsil tfadrafnagar, Distt. sarguja, C.G. (ACCUSED PERSONS) VE R SU S : 1. Pawan Kumar Agrawal s/o Late Qm Prakash Agrawal, age 45 years, r/o vlllage Bhalyathan Read, surajpur, p.s. & Tehs.l.l surajpur, Distt. surguja, C.G. (COMPIAINANT) 2. Itie State of Ctahattisgarh, through District Maglsfcrate sarguja, AmbikapBr, Cbhafetxsgarh, ^ (PROSEeUTION) CRIMXNAL REVISKM1! CT/S. 397AOI O? THE ©088OE ©RIMIN&L PROGEDURE. "'• i : : ~—~ N l^t •r- i,I ' ;] i; fel! w '^ HI6HCOURTOFGMHATTISGARHATBILASPUR Criminal Revision N6 609/2003 .11 •-iv 1-I! M- Appliconts Non-applicants Vs. ^. Bcyiwig Lal and anBither Pawoui Kumar Ayawal & ahother. Shci A.K.Prasad leo»Aedcounselfor the opplicants. Shri R.Prodhan leamed cownsei fw the r'espondent. OR DER (Passedon 03 -OB-2005) Dhirendrn Mishra.J. The applicants hdve preferred this revision petition against the orcler dated 24-11-2003 passed by First Additional Sessions Judge, Surajpur in Criminal Revision No. 280/2003 by which the revision preferred by the non-appliamt No.l has been allowed and the order dated 23-09-2002 passed by Judicial Magistrate First Class, Surajpup in Criminal Case No. 20/2002 wasrejected as premature. 2. The factsof the case giving arise to this revisi<?n are that acon'iplaint under Section 138 of the Negojt-iable Instmment Act (for shprt- lthe Act') was filed on the allegation that a cheqye for a sum of Rs. 3 l^s given by the applicarit on 29-12-20Ql^was disl'ionbned By the Bonl^ whereupon i tile F non-apptictMffs served a nofice ;on 28-06-200t -cfflling;ijpoh1|ieapplicants-h) n'lok6 pa)fmerit against theisaid clwque. Notice of 3em<mcl ^ re^eived II ' ii ui_^i..,-.i. •i'A.^ S8>S82Biftj8 \ -&- by the appliconts on 09-07-2001. Non-applicant / complainaait filed the criminal complaint on 24-07-2001 i.e. before the gxpiry of period of 15 days as envisaged under 5ection 138 read with Secfion 142 (a) of the Act. 1,i: 3. Learnedcounsel relyiihg on the Judgment in the matf'erof Saketh India Ltd. & others Vs. India Securities Ltd. reported in 1999 SCC (Cri.) 329, submits that the method of computation of period of 15 days is to be done by excluding the date on which thenotice of demond was received by the dr'dwerof the cheque and thereafter if •the amount is not paid within 15 days then on 16 day cause'ofactionarises to the dn»werandaccordingly it is submitted that if this test is applied on 24-07-2001, no cause of action wasavailabletbthenon-applicantNo. 1 to file the complaint and thus the complaint was premature. However, the learned Additional Sessions Judge erroneously held that the daite of taking cognizance of the offence is the date when the trial Court recorded the stafement of complainant underSection 200 of the Code of Criminal Procedure. 4. Learned counsel for^the applicouits relying upon the judgment on Bombay 1-ligh Court in the matter of Rakesh Nemkar Porwal Vs. Narayan DhonAj Joglekar arid another reported in 1993 CN. Law Joumal 680, in the judgment of Andhra Pradesh High Court- jn tiie matfer of M/s Mahalaxmi Enterprlses Caltcut Kerala and another Vs. Sri Vishnu Trading Co. and another reported in -3 ;t •i3 -3- AIR 1991 (A.P.) 74 amd the jud9ment of Sujrot High Court in the matt-er of Dave Pruthvtshkumar Bhanu Prasoel Vs. Stat®of 6uyat and arwther-reported in 2000 (3) Crinws 334, submits that the complttint was filedbynon-applicoait No. 1 before the expiry period of A . . . . ^ limitation omd therefflre the trial Court rightly held the criminal complaint t<r be premature as on the date of filing of complaint no cfluse of action wos available to the eomplaincuit / non-applicant No. 1. In the above cited judgment it hois been held that no offence js said to have been committed unlessand until the period of 15 days as prescribed under sub clause (c) of Section 138 has in fact elapsed. A Court would therefore be barred in law from taking cognizance of a complaint in respect of such an offence, at ony point of time prior to this. He further submits,that point of time at which cognizance is taken however,is when the complaint is presented to the learned Magistrate. Thus in the present case comphint was presentedon 24-07-2Q01and opplying the above test and the methodof computation of period as held by the Apex Court in the matter of 5fld<eth India (Suprd), the compkiint was oKimittedlypremature as no couse ofaction arises tp the complainant on the date when it was filed. On the other hand ledpned counsel for the respondents relying onl the judgment of Apex Court in the maitter of Narsingh']&as Tapadia Vs. Soverdhan Das Partnnl and onotherreportedinAIR 2000 SC 2946 submitsithata complaint connot bedismissed as preinature even|if itis -^ m"~-i r i": ' -^- \ ilhMii filed before the expiry of period for notice as contemplated ufider Section 138 (c) of the Act. It is further argued by the complainoait that sub clause (c) of Section 138 of the Actenables the Court to enfertain a comptaint and clouse (l?) of Section 142 of the Act prescribes a period within which the complaint can be filed from the date the ccuse of action arises under Ckuse (c) of the proviso to Section 138, omd no period is prescribed before which the compkiint con not be filed. Defending the impugned order learned counsel for non- applicant submits thatthe finding recorded to the effect that the cognizonce of the offence shall be deemed to be /taken by the judicial Magistrateon 24-0^-2001, the date ^ on which the preliminary evidence was recorded by Magistrate and accordingly the complaint was properly filed which could not be dismissed holdirig the same to be premature. 6. I have heard counsel for the parties. 7. In my considered opinion the judgment relied upon by me counsel for the applicants are no moreu good law in view of the Judgment of the Apex Court iri •the matter of Narsinghdas Tapadia (Supra) because in paragraph 8 and 10 of the said judgment the medning of takihg cognizance: of an offence by the Ma9istrate has been interpreted to the effect that tdkirig cognizance of an offence by |the Court meons the action taken by the Court initiating Judicial proceedings againstan offender in respectofithe '"—5 ! ;\! ^^SSSiS,^..^,^^:. :'S^^^^^^^^^^St^ 8. 10. -5- \ offence regarding which the complaint has been filed. Mere presentation of the complaint in Court am not be held to meon that itS'cdgnizdnce has been taken by the Magistrate. If the comptoint is found to be premature it can await maturity or can t)e retumed to the complainant ft ..<: for filing the same tater 'dhd its mer-epresentation at an early date cim not necessarily render the complaint liable for dismissal or confers any right on the accused to absolve from the criminal liability for the offence. Referring to Section 190 of -riie Cr.P.C. it has been held that when on receiving the complaint the Magistrate applies his mind for the purposes of proceeding under 5ection 200 and the succeeding Sections in chapter XV of the Code of Criminal Procedure 1973, he is said to hwe -taken cognizance of the offence within the meaning of Section 190 (1) (a) of the Cr.P.C. Thus in the light of the jud9ment of the Apex Court in the matter of Narsinghckis (supra), I am of the opinion thatthe impugned orderpassed by the tearned Sessions Judge reversing the finding of the trial Court cuid restoring the comptaint to jts original form is in accordance with taw. ' . 9. Consequently the revision fails and the same is dismissed. In view of this order M.Cr.P. No. 816/2005 stands disposed of. ', DhirendraMsshra Judge