N VENKATA SIVARAM PRASAD Vs. RAJESWARI CONSTRUCTIONS

JUDGEMENT

(1.) The matter has been referred to the Division Bench at the instance of our learned brother K. S. Srivastav, J. The case arose under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The issue that is referred is as follows : "Whether the Court can proceed with the case if it comes to its knowledge that the offence is committed during the pendency of the premature complaint."

(2.) A few facts are necessary for proper appreciation of the case. The appellant is the complainant and the accused is the respondent in C.C. No. 108/91 on the file of II Additional Munsif Magistrate, Chirala. The respondent issued a cheque for Rs. 18,000/dated 30-4-1991 in favour of the appellant. The said cheque was dishonoured by the bank on 7-5-1991 and the same came to the knowledge of the appellant on 13-5-1991. The appellant, thereafter issued notice on 25-5-1991 through registered notice requiring the respondent to arrange payment. The said notice was returned to the appellant by the postal authorities stating that the respondent refused to accept the notice on 27-5-1991. The appellant filed criminal complaint before the II Additional Munsif Magistrate, Chirala on 3-6-1991. From the docket sheet of the Court below, it is seen that the learned Magistrate examined the complainant on 4-6-1991 and adjourned the case for hearing on 27-6-1991. Thereafter the complaint was taken on file in C.C. No. 108/91 on 5-7-1991 and summons were issued on 27-8-1993, the accused was acquitted. Against the said order the present appeal has been preferred by the appellant. The learned Magistrate held that the cause of action for filing the complaint under Section 142 of the Act arose only on 12-6-1991 and since the complaint was filed during the pre-offence period, the accused cannot be found guilty of the offence under Section 138 of the Act.

(3.) Before delving into the legal aspects, it is necessary to extract Section 138 and Section 142 of the Act. Section 138 :