Ratnesh Jaiswal vs State Of U.P. Thur. Secy. Home ...
2013 Latest Caselaw 6196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- CRIMINAL REVISION No. - 92 of 2011
 

 
Revisionist :- Ratnesh Jaiswal
 
Opposite Party :- State Of U.P. Thur. Secy. Home Deptt. Civil Secret. & Another
 
Counsel for Revisionist :- Rajendra Pratap Singh, Rajendra Pratap Singh
 
Counsel for Opposite Party :- Govt. Advocate, A.S. Gaur
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1. This criminal revision has been filed by the revisionist challenging the order dated 19.2.2011 passed by the learned 4th Additional Sessions Judge, Faizabad by which the appeal filed by Ramashanker Singh was allowed and impugned order under appeal was set aside.

2. Heard Shri Rajendra Pratap Singh, learned counsel for the revisionist, Ms. Zeba Islam Siddiqui, learned AGA for the State respondent and Shri A.S. Gaur, learned counsel for respondent no.2.

3. The brief facts of the case are that Ramashanker Singh was a tenant of 1st and 2nd floor of House No.73-E of the revisionist - Ratnesh Jaiswal at the rate of Rs.2000/- per month and is living there, but he was in arrears of rent since June 2006. Ramashanker Singh in lieu of arrears of rent issued Cheque No.645820 of Allahabad, Collectorate Extension Counter A/C No.1721 for Rs.20,000/- in the name of the revisionist in his own hand writing and signature on 30.11.2007. However, the cheque was dishonoured for want of money in the said account, and on account of non-matching of the signature with the specimen signatures kept in the bank. A notice by registered post and under certificate of posting was sent to the appellant through counsel Sri Somdutt Tripathi. The registered notice returned with the denial report. Despite this, Ramashanker Singh did not pay Rs.20,000/- to the revisionist, and he made forged signature on the cheque deceiving the landlord. The revisionist, in support of his complaint, has examined himself under Section 200 Cr.P.C., and Ram Bilas Jaiswal under Section 202 Cr.P.C., and filed original cheque in question, cheque-deposit receipt, memo of objection, registry receipt and UPC receipt as documentary evidence. The accused stated in the court that he had not issued any cheque to the revisionist, and the case has been initiated against him on account of enmity. In order to prove his case, the revisionist examined himself as PW-1 and Brijesh Kumar as PW-2 and as documentary evidence he filed application paper no.13-Ba, objection dated 9.9.2009, copy of P.A. Case No.64 of 2008 and other papers. Ramashanker Singh was examined as D.W.1. In his statement under Section 313 Cr.P.C. the appellant denied the allegations made in the complaint, and stated that he has not issued any cheque to the revisionist, and there is no arrears of rent. The cheque has been taken by his wife by deceiving her and the witnesses are deposing falsely. After hearing the learned counsel for the parties and perusing the evidence on record, the trial court convicted the appellant under Section 138 of the N.I. Act (hereinafter referred to as the Act), and sentenced him to undergo 1 year RI, and fine of Rs.30,000/- and in default of payment of fine to further undergo additional imprisonment for one month. Feeling aggrieved, criminal appeal was filed, which was allowed vide impugned order dated 19.2.2011 on the ground that complaint has been filed before expiry of fifteen days from receipt of notice, hence this criminal revision.

4. The very question involved in this criminal revision is that as to whether cognizance can be taken on a criminal complaint under Section 138 of the Act prior to expiry of 15 days of the receipt of notice, and whether non-matching of signatures on cheque do constitute an offence of Section 138 of the Act.

5. In the instant case, notice was issued to Ramashanker Singh through registered post on 13.2.2008. Registered notice returned back with a note of refusal on it on 19.2.2008. The complaint was filed on 29.2.2008.

6. Learned counsel for the revisionist relied upon the case of Raj Kumar Khurana v. State of (NCT of Delhi) and another, (2009) 6 SCC 72, Shakti Travel and Tours v. State of Bihar and another, (2002) 9 SCC 415, Smt. Hem Lata Gupta v. State of U.P. and another, 2002 Cr.L.J. 1522, and Narsingh Das Tapadia v. Goverdhan Das Partani and another, AIR 2000 SC 2946.

7. It was argued by the learned AGA that filing of complaint and taking cognizance are two distinct thing, and as per the provision of Section 138 of the Act, after service of notice the opposite party has fifteen days from the date of receipt of notice to comply with the order, hence cognizance cannot be taken before fifteen days of receipt of notice.

8. In the case of Raj Kumar Khurana v. State of (NCT of Delhi) and another (supra) the Apex has held as under: -

"Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. [See R. Kalyani v. Janak C. Mehta and others, (2009) 1 SCC 516 and DCM Financial Services Ltd. v. J.N. Sareen and another, (2008) 8 SCC 1]. Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be:

(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or

(ii) (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with." (para 11)

9. In the case of Narsingh Das Tapadia v. Goverdhan Das Partani the Apex Court has held as under: -

"Mere presentation of the complaint in the court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint 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 dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Again this Court in D. Lakshminarayana Reddy and others v. V. Narayana Reddy and others, AIR 1976 SC 1672 dealt with the issue and observed: -

"What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). If instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence." (para 10)

10. In the case of Smt. Hem Lata Gupta v. State of U.P. it has been held as under: -

"In this way, the controversy in the case has been finally settled by the Apex Court that in case the complaint is filed prior to expiry of 15 days of the notice, it cannot be said incompetent. The bar of expiry of 15 days is for taking cognizance. In the intant case, though complaint was filed on 26.6.1998, which was much after 15 days from the date of notice i.e. 13.6.1998 and therefore, no cognizance was taken within 15 days of the date of notice. The learned Sessions Judge, therefore, wrongly allowed the revision. Thus, the order of learned Additional Sessions Judge cannot be sustained." (para 12)

11. From a perusal of above decisions it is clear that the complaint can be filed before expiry of fifteen days, but cognizance cannot be taken before expiry of fifteen days. What is cognizance has not been defined in the Criminal Procedure Code, what has been defined in several pronouncements of the Apex Court. In the case of Fakhruddin Ahmad V. State of Uttaranchal and another, 2008 AIR SCW 5881, the Apex Court has held as under: -

"From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by 'taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. (para 14)

Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied thast the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender." (para 15)

12. In the case of Superintendent and Rememberancer of Legal Affairs, West Bengal Vs. Abni Kumar Banerji, AIR (1950) Cal. 437 it has been held that :

".........What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter- proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.........." (para 7)

13. This proposition of law was approved by the Apex Court in the case of R.R. Chari v. State of U.P., (1951) SCR 312.

14. In the case of Gopal Das Sindhi and another v. State of Assam and another. AIR (1961) SC. 986, it was observed as follows :

".....................It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint..........." (para 7)

15. In the case of Mohd. Yousuf v. Smt. Afaq Jahan and another, (2006) 1 SCC 127 the Apex Court after going through all the propositions of law held that :

"............Obviously it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 Cr.P.C. and subsequent Sections of Chapter XV of the Code of Criminal Procedure or under Section 204 Cr.P.C. under Chapter XVI of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.........."

16. In the case of Devrapalli Lakshminarayana Reddy and others v. V. Naryana Reddy and others. AIR 1976 Supreme Court 1672, the Apex Court has held that :

"It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance." The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation udner Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 1999 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence."

17. The same view has earlier been taken by Apex Court in the case of Bhagat Ram Vs. Surinder Kumar, (2004)11 SCC 622.

18. From the above view it is very much clear that when a Magistrate makes up his mind to examine the complainant on oath and the witnesses present then it shall be said that the Magistrate has taken cognizance of the offence.

19. Taking cognizance and summoning of accused in a complaint case are two different things.

20. In the instant case, criminal complaint was filed on 29.2.2008, and notice returned with a note of refusal dated 19.2.2008, so if I take the date of service of notice to be 19.2.2008, then the complaint was filed on 29.2.2008, i.e. before expiry of 15 days.

21. In the memo of revision, it has been stated that the trial court has taken cognizance of the matter on 6.5.2008, when the order summoning the accused was passed. This averment is against the proposition of law, as discussed above. The cognizance will be deemed to have been taken on the date when the Magistrate passed the orders for recording of the statement under Section 200 Cr.P.C.

22. From a perusal of the impugned appellate order, it is clear that the appellate court has not considered the date of taking of cognizance, and has only allowed the appeal on the ground that the criminal complaint, which has been filed is immature. Certainly, learned appellate court has erred in coming to the finding.

23. In the instant case, it is not clear from a perusal of the orders of both the courts below that as to when the Magistrate passed orders directing the complainant to give statements under Section 200 Cr.P.C. In view of this, it cannot be ascertained from the record as to when the Magistrate has taken cognizance

24. In view of what has been stated above, this criminal revision is liable to be allowed, and is hereby allowed. The impugned order dated 19.2.2011 passed by the learned 4th Additional Sessions Judge, Faizabad is hereby quashed. The matter is remanded back to the court below to decide the criminal appeal afresh in the light of the observations made above..

Order Date :- October 1, 2013

Anupam

(Justice Arvind Kumar Tripathi - II)