JUDGMENT M.K. Mittal, J.
1. Application has been filed under Section 482 of Criminal Procedure Code (hereinafter referred as Code) to quash the Complaint Case No. 6533 of 2004. Rajesh Arora v. Sunt Kumar Khera under Section 138, Negotiable Instruments Act (hereinafter referred as Act) pending in the Court of A.C.J.M., Court No. 46, Agra.
2. Heard Mr. Ajay Rajendra, learned Counsel for the applicant. Mr. M.N. Jain learned Counsel for the opposite party No. 2, learned A.G.A. and perused the record.
3. Brief facts giving rise to the aforesaid proceedings are that opposite party No. 2 filed a complaint alleging that there was business relationship between him and accused and in that connection, he gave Rs. 4.22 lacs to the accused on different occasions. The accused had assured him that he would return back the money and when he demanded his money, the accused gave the cheque for Rs. 4.20 lacs of Rani Laxmi Bai Arban Cooperative Bank Limited, Jhansi, dated 4.8.2004 at his Agra residence and assured that the amount would be paid. He also assured him to pay the balance amount of Rs. 2,000/- subsequently. The accused asked the complainant to wait for some time as full amount was not in his Bank account but the accused did not inform him the exact date for payment and the complainant thinking that due date of the cheque would expire, presented the cheque at State Bank. main branch, Agra, on 10.11.2004. This cheque was returned by the Bank on 30.11.2004 The accused knowing that money was not in his account gave acheque and intentionally did not allow the payment to be made with mala fide intentions. The complainant gave the notice to the accused on 8.12.2004 but no payment was made and then he filed a complaint on 24.12.2004.
4. According to the applicant he gave a cheque for Rs. 20,000/- to his friend Mr. S.S. Bajpayee on 30.9.2002 as security amount to the loan on which no date or name was mentioned and he repaid the amount to Mr. Bajpayee but Mr. Bajpayee informed that the cheque was missing but assured to return the cheque as soon as it was available. On 2.10.2004, Mr. Bajpayee informed the applicant that the cheque was not traceable and therefore the applicant got stop payment of the cheque on 5.10.2004. The applicant has further contended that under conspiracy and by fabricating the amount and increasing the same to Rs. 4.22 lacs, the cheque was sent to his Bank. In this connection, he also gave a reply notice dated 27.12.2004 to the opposite party. The applicant has further contended that the opposite party allegedly gave a notice dated 8.12.2004 and has filed the complaint on 24.12.2004 violating the provisions of Section 142(b) read with Section 138(c) of the Act and the complaint is therefore not maintainable and is liable to be quashed. In reply the opposite party has filed counter affidavit and has contended that no fabrication has been made in the amount or date of the cheque and that the learned Magistrate has rightly taken the cognizance and passed the summoning order and that complaint is not liable to be quashed.
5. The main contention of the learned Counsel for the applicant is that the complainant has not followed the provisions of Sections 138(c) and 142(b) of the Act and therefore the complaint is liable to be quashed. It will be useful to refer to Section 138(c) of the Act the relevant portion of which reads as under:
...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.
6. The cognizance of the case is to be taken by the Magistrate as provided under Section 142 of the Act. This section reads as under:
Cognizance of the offence: - Notwithstanding anything contained in the Cr.P.C. 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;
(Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period);
(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.
7. Reading of these two sections shows that complaint can be filed when the cause of action arises i.e. after 15 days of the service of the notice and within one month there from. The Proviso as added w.e.f. 6.2.2003, provides that even after the expiry of this period of one month, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period, the cognizance of a complaint can be taken by the Court. However, this section does not provide for the contingency when the complaint is filed before the expiry of 15 days period, after the service of the notice.
8. In the instant case, notice was given on 8.12.2004 and the complaint was filed on 24.12.2004. The copy of the order sheet (Annexure No. 7) shows that on 24.12.2004 the learned Magistrate after hearing directed that case be registered and fixed 19.1.2005 for recording the statement under Section 200 of the code. Under Section 142 of the Act the important date is the date of taking cognizance in the matter.
9. Now it has to be seen as to when the cognizance of the offence is taken by the Magistrate. The expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. 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 IX, he, has in the judicial exercise of his jurisdiction, 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. Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. .
10. In the case of Cref Finance Ltd. v. Shree .Shanthi Homes (P) Ltd. and Anr. , the Hon'ble Apex Court while considering the import of the word cognizance taken by the Magistrate held that "cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence."
11. In this case such situations have also been mentioned where the Magistrate may not take cognizance at all, although he proceeds with the case and such situations are as for instance a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority, etc.
12. In the instant case, learned Magistrate directed for registration of the complaint case and also fixed a date for recording the statement under Section 200 of the code; therefore, he proceeded with the case and in view of the above legal position I am of the opinion that he took cognizance of the offence on 24.12.2004 itself. Learned Counsel for the applicant has contended that since the cognizance was taken before the expiry of 15 days from the date of service of notice, the complaint is not maintainable. But the learned Counsel for the opposite party contended that although the cognizance was taken on 24.12.2004 the complaint cannot be quashed on the ground of its prematurity. In this connection a reference has been made to the case of Narsing Dass Tapadia v. Goverdhan Das Partani and Anr. III (2000) CCR 160 (SC) : I (2001) BC 113 (SC) : 2000 SCC (Crl) 1326. In this case, while considering the provision of Section 138(c) of the Act, it has been held that no period is prescribed before which the complaint cannot be filed and if filed, not disclosing the cause of action in terms of Clause (c) of the Proviso to Section 138, the Court may not take cognizance till the time, the cause of action arises to the complainant. It has further been held in para 10 of this case that mere presentation of the compliant in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, 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.
13. Therefore, if the complaint has been filed before the cause of action arises it cannot be rejected on the ground of prematurity.
14. In this matter the cognizance has been taken by the Magistrate First Class under Section 190(1)(a) of the Code and as per Section 142 of the Act, Magistrate First Class who took cognizance was competent to try the offences punishable under Section 138 of the Act. Section 460(e) of the Code provides that even if a Magistrate is not empowered by law to take cognizance of offence under Clause (a) or (b) of Sub-section 1 of Section 190 of the Code but erroneously in good faith takes cognizance a proceeding shall not be set aside merely on the ground of his not being so empowered. It is only an irregularity and is curable. Therefore even if learned Magistrate could not take cognizance on 24.12.2004 in view of Section 142 of the Act, he being competent to try the case, the complaint is not liable to be quashed in view of Section 460(e) of the Code.
15. As far as the question of manipulation in the cheque is concerned, it is factual in nature and can be seen by the Trial Court and the applicant can raise this objection in the Trial Court at appropriate stage.
16. Thus I come to the conclusion that application under Section 482 of the Code has no force and is liable to be dismissed and is hereby dismissed. The interim order dated 24.9.200S is hereby vacated.