Allowed

Om Parkash v. Jagdish Singh and Anr.

Punjab & Haryana HC7 Oct 2013CRM-A/280/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal against an order dismissing a Section 138 complaint as premature. The court applied Supreme Court precedents to set aside the dismissal and granted liberty to the appellant to present the complaint again at the appropriate time.

What did the court decide?

The order dated 12.9.2009 dismissing the complaint was set aside, and liberty was granted to the petitioner to present the complaint again if advised.

Om Parkash Vs Jagdish Singh and Anr. — Cheque Dishonour | Punjab & Haryana HC (2013)

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Crl. Misc. A.No.280-MA of 2010 (O&M) [ 1 ]

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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

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Crl. Misc. A.No.280-MA of 2010 (O&M) Date of Decision: Oct. 7,2013

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Om Parkash ........................................ Appellant

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Versus

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Jagdish Singh and another ..................... Respondents

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Coram: Hon'ble Ms. Justice Ritu Bahri

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1.To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. Pardeep Goyal, Advocate for the appellant.

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Mr. Anil Kumar Garg, Advocate for the respondents.

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RITU BAHRI, J. (Oral)

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Crl. Misc. No. 11962 of 2010

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There is a delay of 43 days in filing the present

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appeal.

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For the reasons stated in the application, the delay

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of 43 days in filing this appeal is condoned.

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The application is disposed of.

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Main case

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This Appeal is against the judgment dated

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Kaur Rupinder 2013.10.10 10:48 I attest to the accuracy and integrity of this document Chandigarh

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Crl. Misc. A.No.280-MA of 2010 (O&M) [ 2 ]

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12.9.2009 passed by the Judicial Magistrate Ist Class, Malerkotla, whereby the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act has been dismissed on the ground that the statutory period of 15 days after giving the legal notice on 12.7.2006 had not expired as the complaint had been presented on 20.7.2006. It was a pre-mature complaint and therefore did not fall under the purview of Section 138 Negotiable Instruments Act.

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On notice, an opportunity was granted to the respondents to settle the matter. Counsel for the respondents has informed that he is not in a position to make the payment of the cheque amounting to `80,000/-.

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As per the judgment of the Supreme Court in Narsingh Das Tapadia v. Goverdhan Das Partani 2000 (4) R.C.R. (Criminal) 39 while examining the case of a premature complaint it was held that the complaint could be returned back to the complainant for filing at some later stage. Mere presentation of the complaint at an earlier date would not render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability. In paragraph 7 it was observed as under:-

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“7. Mere presentation of the complaint in the court cannot be held to mean, that its cognizance had

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Kaur Rupinder 2013.10.10 10:48 I attest to the accuracy and integrity of this document Chandigarh

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Crl. Misc. A.No.280-MA of 2010 (O&M) [ 3 ]

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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 Supreme Court 1672 dealt with the issue and observed:-

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'”hat 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 © of Section 190(1). Whether the Magistrate has or has not taken

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Kaur Rupinder 2013.10.10 10:48 I attest to the accuracy and integrity of this document Chandigarh

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Crl. Misc. A.No.280-MA of 2010 (O&M) [ 4 ]

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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.

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In the present case, as per Section 138 of the Negotiable lnstruments Act after giving a legal notice the accused was given 15 days time to pay back the amount so stated in the cheque which was dishonored. After the expiry of 15 days a complaint be presented under Section 138 of

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Kaur Rupinder 2013.10.10 10:48 I attest to the accuracy and integrity of this document Chandigarh

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Crl. Misc. A.No.280-MA of 2010 (O&M) [ 5 ]

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the Negotiable Instruments Act. However, in the present case, the legal notice was sent on 12.7.2006 and the complaint was presented on 20.7.2006 which was at best a pre-mature complaint.

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In view of the judgment of the Supreme Court in Narsingh Das Tapadia's case (supra) the order dated 12.9.2009 passed by the Judicial Magistrate Ist Class, Malerkotla, is set aside and liberty is granted to the petitioner to present the complaint again, if so advised.

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The appeal is allowed.

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7.10.2013 ( RITU BAHRI ) Rupi JUDGE

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Kaur Rupinder 2013.10.10 10:48 I attest to the accuracy and integrity of this document Chandigarh

Om Parkash v. Jagdish Singh and Anr.

Case brief

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Om Parkash v. Jagdish Singh and Anr.

Case brief

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