THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL REVISION CASE No.1340 of 2004 Dated:17.06.2010 Between: V.Manohar Gupta and others .. Petitioners And The State of Andhra Pradesh rep., by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another .. Respondents ORDER: This Criminal Revision Case is directed against the judgment of acquittal in C.C.No.235 of 1999 on the file of the II Additional Judicial Magistrate of First Class, Tirupati, whereby and whereunder, the learned Magistrate found accused - G.R.Venkata Babu not guilty for the offence punishable under Section 138 read with 142 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) and acquitted him accordingly. Brief facts of the case giving rise to filing of this revision by PW.1 in C.C.No.235 of 1999 are: PW.1 – V.Manohara Gupta presented a complaint before the II Additional Judicial Magistrate of First Class, Tirupati, on 26.04.1999 alleging inter alia that accused - G.R.Venkata Babu, borrowed a sum of Rs.1,50,000/- on 22.02.1999 and Rs.1,50,000/- on 01.03.1999 and executed two promissory notes on the respective dates of borrowing. The accused issued Exs.P5 and P6 - cheques, dated 22.02.1999 and 01.03.1999 for Rs.1,50,000/- each towards discharge of his liability. On presentation, the cheques came to be dishonoured under Ex.P9 - cheque return memo, dated 08.04.1999. Thereupon PW.1 issued a legal notice, dated 16.04.1999, a copy of which has been exhibited as Ex.P7 demanding the accused to make payment of the amount covered under Exs.P5 and P6 - cheque. The accused issued Ex.P8 - reply, dated 22.04.1999, denying of his liability. Thereupon, PW.1 presented a complaint, dated 26.04.1999 before the II Additional Judicial Magistrate of First Class, Tirupathi. The learned Magistrate referred the complaint to the concerned police under Section 156(3) Cr.P.C. on 15.05.2004. Thereupon, PW.4 – K.Nagi Reddy, Sub Inspector of Police, Tirupati, registered a case in Crime No.205 of 1999 for the offences under Sections 420 of the Indian Penal Code (for short ‘I.P.C.’) and 138 of the N.I. Act. After due investigation, PW.4 – K.Nagi Reddy submitted a charge sheet before the II Additional Judicial Magistrate of First Class, Tirupati. The learned Magistrate took the charge sheet on file as C.C.No.235 of 1999 for the offence under Section 138 of the N.I. Act and issued summons. On appearance of the accused and on furnishing copies of documents to him as provided under Section 207 Cr.P.C., the learned Magistrate examined the accused under Section 251 Cr.P.C. putting substance of accusation levelled against him. The accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offence under Section 138 of the N.I. Act, the prosecution examined four witnesses as PWs.1 to 4 and marked 11 documents as Exs.P1 to P11. The plea of the accused is one of denial of the case. The learned Magistrate, on considering the evidence brought on record and on hearing the prosecution and the accused, found the accused not guilty for the offence punishable under Section 138 read with 142 of the N.I. Act and acquitted him accordingly by judgment dated 29.08.2002. Hence, this Criminal Revision Case by PW.1, who is the de facto complainant in C.C.No.235 of 1999. Heard Sri Gudipati Venkateswara Rao, learned counsel appearing for the petitioner, and perused the material brought on record. The learned counsel appearing for the petitioner submits that the petitioner presented a complaint before the II Additional Judicial Magistrate of First Class, Tirupati, and thereupon the learned Magistrate referred the complaint to the police under Section 156(3) Cr.P.C. Since the petitioner presented a complaint before the II Additional Judicial Magistrate of First Class, Tirupati, it is essentially be treated as the one required to be presented under Section 142 of the N.I. Act. A further submission has been made that the trial Court has committed serious error in recording a finding that the complaint presented by the petitioner is premature. In elaborating his arguments, it is contended that once there is denial by the accused with regard to his liability covered under the cheques in question, the petitioner need not wait till the expiry of 15 days as provided for under Section 138(c) of the N.I. Act and instead he can file a complaint even before the expiry of 15 days in which case the complaint filed by the petitioner on 26.04.1999 cannot be treated as premature. The contentions advanced by the learned counsel appear to be impressive at the first brush, but on close scrutiny of the evidence brought on record, I do not detain myself long to reject the same. Section 138 of the N.I. Act as stood by the date of presenting the complaint by the petitioner before the II Additional Judicial Magistrate of First Class, Tirupathi, reads as hereunder:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has 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 is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes 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 the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Learned counsel appearing for the petitioners, in support of his submission, placed reliance on the judgments of this Court in M/s. OPTS Marketing Private Limited and others v State of Andhra Pradesh and another[1] and Leader Capital Services India Private Limited rep. and others v Station House Officer, Begumpet Police Station, Hyed and others[2]. It is evident from clause (c) of the proviso to Section 138 of the N.I. Act, referred to above, that the complainant has to wait minimum 15 days of the receipt of the notice issued to the accused demanding the payment covered under the cheques in question. The petitioner issued notice on 16.04.1999. He filed the complaint before the Magistrate on 26.04.1999. He did not wait for expiry of the statutory period of 15 days for filing a complaint for the offence under Section 138 of the N.I. Act. Therefore, it is to be held that the complaint filed by the petitioner before expiry of 15 days statutory period is to be held as premature. The trial Court considered this aspect in right perspective and recorded a finding that the complaint filed by the petitioner is premature. The finding recorded by the trial Court is in accordance with the provisions of Section 138 of the N.I. Act. The next contention of the counsel appearing for the petitioner is that the petitioner filed a complaint before the learned Magistrate for both the offences under Section 138 of the N.I. Act and 420 of the I.P.C., and thereupon the concerned Station House Officer on receipt of the complaint, registered a case in Crime No.205 of 1999 for the offence under Sections 138 of the N.I. Act and 420 of the I.P.C. In the circumstances, according to the learned counsel, the trial Court ought to have taken cognizance of the case under Section 420 of the I.P.C. also. The complaint is of the year 1999. The learned Magistrate forwarded the complaint to the concerned Station House Officer under Section 156(3) Cr.P.C. on 15.05.2004. The Police after due investigation filed the charge sheet. The learned Magistrate took cognizance of the case for the offence under Section 138 of the N.I. Act. If the petitioner was dissatisfied of the order of taking cognizance for the offence under Section 138 of the N.I. Act by the trial Court, he ought to have questioned the same, while the matter was pending trial. He did not do so. At this distance of time, the petitioner cannot be permitted to contend that he is not aware of the learned Magistrate taking cognizance of the offence under Section 138 of the N.I. Act alone. For taking cognizance of the case under Section 138 of the N.I. Act, the payee has to file a complaint in writing and thereupon the concerned Magistrate has to take cognizance of the same. Section 142 prescribes the procedure for taking cognizance of the offence under Section 138 of the N.I. Act, which reads as hereunder: 142. Cognizance of offence.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). (a) 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 of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. Since, the learned Magistrate has taken cognizance of the offence on the final report submitted by the police, the very taking of the cognizance of the case for the offence under Section 138 of the N.I. Act is not in accordance with Section 142 of the N.I. Act. The trial Court considered this aspect in right perspective and proceeded to acquit the accused for the offence under Section 138 read with Section 142 of the N.I. Act. I do not see any valid grounds to interfere with the judgment of acquittal. Accordingly, the Criminal Revision Case is dismissed. _________________________ B. SESHASAYANA REDDY, J 17.06.2010 KH [1] 2001 (1) ALT (Crl.) 205 (A.P.) (F.B.) [2] 2005 (3) ALT (Crl.) 98 (A.P.)