Reliance Industries Ltd. Vs The State of Maharashtra, Patodia Textiles Industries Ltd., Indra Kumar Patodia and Mahendra Kumar Patodia

R.G. Ketkar, J.@mdashThe learned single Judge of this Court (A.R. Joshi, J.) by order dated July 9, 2009 has referred following two points for

the determination by the Larger Bench, and accordingly, this Court is required to consider the following two points in these appeals for our

decision:

Point (1): In the matter of complaint for the offence punishable u/s 138 of the Negotiable Instruments Act, whether the complaint without the

signature of the complainant, inspite of verification of complaint, is ''non entia'' and whether no prosecution can lie on such complaint?

Point (2): If answer to point No. 1 is negative then whether it is a mere irregularity and it can be cured subsequently and whether such subsequent

amendment would relate back to the date of filing of the complaint or whether it would hit by the Law of Limitation.

2. On behalf of the appellants in both the appeals (hereinafter referred to as ""the complainants""), reliance was placed upon the judgment of the

learned single Judge (R.K. Batta, J.) in the case of Vijay Gondhalekar and Another Vs. Ramchandra Sarda and Another, . On the other hand, on

behalf of respondent Nos. 2 to 4 in both the appeals (hereinafter referred to as ""the accused""), reliance was placed upon the judgment of the

learned single Judge of this Court (V.R. Kingaonkar, J.) in the case of Mr. Roy Joseph Creado, Mr. Anil Parshuram Sawant and Mr. Yogesh

Jayantilal Mehata Vs. Sk. Tamisuddin, a Special Power of Attorney of deceased Smt. Sairabee, Mr. K.N. Tungar, IVth Additional Sessions

Judge and State of Maharashtra, . The learned Judge was of the opinion that the points in question are required to be decided by the Larger Bench

in view of the conflicting views expressed in two different judgments by the two learned single Judges. Accordingly, as pointed out above, the

aforesaid points have been referred for our consideration in these appeals. 3] Criminal Appeal No. 287 of 2009 arises from complaint numbered

as CC No. 1866/SS/07 filed u/s 138 of the Negotiable Instruments Act, 1881 (for short ""the Act""). The complaint was presented before the

learned Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai (for short ""the Magistrate"") on June 3, 2008 alleging that the accused issued

57 cheques drawn on Laxmi Vilas Bank., Fort, Mumbai, of the total value of Rs. 3,21,52,204/. The said cheques were issued by the accused

between December 2, 1997 and March 9, 1998. The cheques were deposited by the complainant on April 5, 1998 and were returned by the

Bank on April 6, 1998 with the remark ""exceeds arrangement"". The complainant issued notice through its Advocate on April 16, 1998 to the

accused recording various facts and demanded the aforesaid amount. Reply was given by the accused through their Advocate on May 4, 1998

denying the allegations made in the notice. It is in these circumstances the complaint was presented through Mr. Lewellyn Joseph Gratian Rego,

Senior Manager (Accounts) before the learned Magistrate on June 3, 1998. The learned Magistrate made the following endorsement on the

complaint:

Presented by the complainant in person. Keep for verification on 30th July, 1998.

Sd/-

3rd June, 1998

It is not in dispute that this complaint was not signed by the authorised representative of the complainant. The complaint was verified on July 30,

1998 by the Senior Manager (Accounts) Mr. Lewellyn Joseph Gratian Rego. The verification statement was duly signed by the said Rego. The

learned Magistrate passed the following order:

Issue summons against accused u/s 138/142 of the N.I. Act, returnable on 7/4/1999.

Sd/-

3/12/1998

4. In so far as Criminal Appeal No. 288 of 2009 is concerned, somewhat similar facts arise therein. In that case the accused issued 58 cheques

drawn on the Indian Overseas Bank, Nariman Point, Mumbai of total value of Rs. 2,24,98,369/. The said cheques were issued by the accused

between December, 1997 and March 8, 1998. The cheques were presented by the complainant April 5, 1998. All cheques were returned unpaid

by the Bank on April 6, 1998 with the remark ""refer to drawer"". By its advocate''s notice dated April 16, 1998, the complainant recorded various

facts and demanded payment of the said amount. On behalf of the accused, reply through advocate was give on May 4, 1998. It is in these

circumstances, the complaint No. 1865/SS/2007 was presented before the learned Magistrate on June 3, 1998 through Mr. Lewellyn Joseph

Gratian Rego, Senior Manager (Accounts). The learned Magistrate made following endorsement:

Presented by the complainant in person. Keep for verification on 30/7/98.

Sd/.

3/6/1998

The complaint was verified on July 30, 1998, by the Senior Manager (Accounts) Mr. Lewellyn Joseph Gratian Rego, The verification statement

was duly signed by the said Rego. The learned Magistrate passed the following order:

Issue summons against accused u/s 138/142 of the N. I. Act, returnable on 7/4/1999

Sd/-

3/12/1998

5. It is not in dispute that the complaint was not signed by the authorised representative of the Company. It is in these circumstances, the

applications were moved by the accused in both the complaints on May 15, 2003 for recalling the process. It was inter alia contended that the

complaints were not signed by Mr. Rego, who had presented the complaints and that Vakalatnama in favour of M/s. Dave and Company was also

not signed by Mr. Rego. It was submitted that the alleged complaints are bad in law and the subsequent proceeding pending before the Court on

the basis of the alleged complaints is also bad in law. It was further submitted that cognizance taken by the learned Magistrate on the basis of the

alleged complaints which were not signed by or on behalf of the complainant, was bad in law and the entire subsequent proceedings taken before

the Court, were bad in law. It was ultimately submitted that the complaints are liable to be dismissed and process issued against the accused

deserves to be recalled.

6. The complainant replied the said applications and denied that the complaints are bad in law for non signing of the complaints and Vakalatnama.

It was also submitted that the learned Magistrate has taken cognizance of the offence after verification was signed by the complainant and the

complaints are valid in law. Reliance was placed upon a judgment of the learned Single Judge of this Court in the case of Vijay (supra) and it was

submitted that non signing of the complaint when the verification is signed, does not vitiate the complaint. The learned Magistrate rejected the

applications by order dated August 28, 2003. The order was carried in Revision Applications before the Sessions Court, Greater Mumbai. By

order dated October 8, 2004, the Revision Applications were dismissed on the ground of maintainability.

7. On behalf of the complainant, Affidavit in lieu of the examinationin-chief was filed on or about August 22, 2008. In both the complaints,

applications at Exhibit 7 u/s 136 of the Indian Evidence Act, 1872 were taken out by the accused on August 11, 2008, inter alia contending that

the complaints u/s 138 of the Act are not maintainable in law as they are not signed by the complainant. If that be so, the question of filing of

affidavits of evidence does not arise. This was replied by the complainant interalia contending that filing of such applications is nothing but an abuse

of process of law and ought to be dismissed with exemplary costs. After narrating the background, a prayer was made to reject the applications

with costs.

8. The learned Magistrate by the impugned orders dated November 26, 2008 below exhibit 7 came to the conclusion that the unsigned and

verified complaints are illegal and as such are liable to be dismissed. He, accordingly, acquitted the accused. It is against these orders, the two

applications seeking leave to appeal were preferred. The learned Single Judge granted leave to appeal and issued notices on the appeal to the

accused for final disposal at the stage of admission. In the light of judgment in the cases of Roy Joseph (supra) and Vijay (supra), the learned

Single Judge framed two points and referred the said points to us.

9. We have heard Mr. Amit Desai, learned Senior Counsel on behalf of the complainant, Smt. V.R. Bhosale, learned APP for respondent No. 1

State and Mr. A.M. Saraogi, learned Counsel for the accused, at length.

10. Mr. Desai submitted that Section 142(a) of the Act provides that notwithstanding anything contained in the Cr.P.C., no Court shall take

cognizance of any offence punishable u/s 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. As against this, Section 2(d) of Cr.P.C. defines ""complaint"" to mean any allegation made orally or in writing to a Magistrate,

with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a

police report. It is submitted that u/s 2(d), a complaint can be made either orally or in writing by any person. The complaint under the Act has to be

necessarily in writing and that too at the behest of payee or holder in due course of the cheque.

11. Mr. Desai further submitted that nonobstante clause of Section 142 of the Act overrides the provisions of Cr.P.C. to the following extent:

(i) u/s 2(d) of the Cr.P.C., a complaint could be either orally or in writing. Under the provisions of the Act, the complaint has to be necessarily in

writing.

(ii) in so far as the complaints under the Cr.P.C. are concerned, criminal action can be set in motion by any person, even by a stranger. In so far as

the complaint under the Act is concerned, a complaint can be filed only by the payee or holder in due course of the cheque.

(iii)whereas under the Cr.P.C., a complaint could be made at any time subject to the provisions of Chapter XXXVI, the complaint under the Act

has to be lodged within one month from the date on which cause of action arises as per Section 142(b).

(iv) whereas under Article 511 of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for less than 3 years or with fine

only under any enactment (other than IPC) such offence can be tried by any Magistrate, under Clause (c) of Section 142, no Court inferior to that

of Metropolitan Magistrate or Judicial Magistrate F.C. can try any offence punishable u/s 138.

12. He further submitted that under the provisions of the Cr.P.C., wherever the Legislature intended that anything is required to be in writing

coupled with signature below the said writing, the Legislature has specially provided therefor. For instance, he invited our attention to Sections 61,

70, 154, 162, 164(4), 200, 203, 204, 207 and 281 of the Cr.P.C. Section 61 of the Cr.P.C. provides that every summons issued by the Court

under the Code shall be in writing, in duplicate, signed by the Presiding Officer of the said Court. Likewise one will find words ""in writing"" and

signed by"" in Sections 70, 154, 162, 164(4), 200, 203, 204, 207, 281 of the Cr.P.C. Thus, wherever, the Legislature provided particular thing is

required to be in writing, as also the signature below such writing is required, it has been specifically laid down in the provisions itself. He further

submitted that the phrase ""in writing"" will not include the words ""signed by"" and it has to be separately provided for. He submitted that in the

present case, the complainant is the Company which is a juristic person and is represented by a natural person. The words ""signed by"" cannot be

added either in Section 142 of the Act or Section 2(d) of the Cr.P.C. Though the complaint in the instant case is not signed, the authorised

representative of the complainant was examined on oath by the learned Magistrate and the verification statement is duly signed by the said Officer.

Alternatively, it was submitted that if it is held that the complaint has to be signed by the complainant it is mere irregularity and not an illegality

warranting dismissal of the complaint on that ground and the irregularity is curable. He also submitted that, at any rate, no prejudice is caused to the

accused for not signing the complaint. In support of this submission, he relied upon the several judgments to which reference will be made at

appropriate place.

13. On the other hand, Mr. A.M. Saraogi, learned Counsel for the accused, submitted that u/s 142(b) of the Act, complaint has to be made within

one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. If the signature on the complaint is not

made at the time of presenting the complaint, still it can be made provided it is within limitation as prescribed u/s 142(b). However, if the signature

is not made at the time of presenting the complaint, subsequently, the said defect cannot be cured after the period of limitation is over. He invited

our attention to the provisions of Section 190 of the Cr.P.C. which enables the Magistrate of the First Class to take cognizance of any offence

upon receiving the complaint of facts which constitute such offence. Section 200 of the Cr.P.C. provides that the Magistrate taking cognizance of

an offence of complaint shall examine upon oath the complainant and the witness present, if any, and the substance of such examination shall be

reduced to writing and shall be signed by the complainant and their witness and also by the Magistrate. In the light of this, he submitted that the

complaint presented before the Magistrate can be treated complete in all respect only if the complaint is signed by the complainant and the

verification is also signed by the complainant. In support of this submission he relied on the judgment of learned Single Judge of A.P. High Court in

the case of P. Preetha, Proprietor of Siddi Vinayaka Steels and Hardware v. Panyam Cements and Mineral Industries Limited and Anr. 112

Comp Cas 124.

14. He submitted that there is a purpose in insisting upon the signature on the complaint as also signed verification statement by the complainant,

because, ultimately if the prosecution is found to be frivolous or otherwise mala fide, the Court may direct the registration of the case against the

complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The verification of the

complaint is essential u/s 200 of the Cr.P.C. before taking cognizance of the offence not only with a view to finding out prima facie truth but also in

order to identifying the person, who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury

or to indemnify the accused. In other words, when the complainant gives statement before the Magistrate in support of his complaint, it is implicit

that if certain statements are found to be false then the identity of perjurer is explicitly made clear. So also, if the complaint is found to be malicious

and frivolous then the action for recovering the compensation can be taken against such complainant. He, therefore, submitted that as a measure of

safeguard, the complaint has to be signed apart from the signed verification statement by the complainant. In support of this submission, Mr.

Saraogi, learned Counsel for the accused, relied upon the judgment of the learned Single Judge of this Court in the case of Roy Joseph (supra).

15. Mr. Desai invited our attention to the judgment of the learned Single Judge (R.K. Batta, J.) in the case of Finolex Industries Ltd. v. Pravin V.

Sheth and Ors. 2002(2)All M.R.644, in particular paragraph 5 thereof, which reads as under:

5. The general principle of Criminal Law is that any person can set the law in motion. However, Section 142 of the Negotiable Instruments Act

which deals with the Negotiable Instruments Act which deals with cognizance of the offences provides that notwithstanding anything contained in

the Criminal Procedure Code, 1973, no Court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing made

by the payee, or as the case may be, holder in course of the cheque. Section 142 starts with nonobstante clause which means that cognizance can

be taken by the Court on a complaint in writing. Therefore, the definition of the expression, ""complaint"" u/s 2(d) which provides for an allegation

made orally would not be attracted in so far as cognizance of the complaint filed u/s 142 of the Negotiable Instruments Act is concerned. The

requirement of complaint being in writing is that when the facts are found to be incorrect, action can be taken against the complainant and it is for

this purpose that verification of the complainant is required to be made by the complainant. Therefore, reading of Section 142 of the Negotiable

Instruments Act would go to show that for the purpose of taking cognizance of any offence punishable u/s 138 of the Negotiable Instruments Act,

there has to be a complaint in writing by the payee or, as the case may be, holder in due course of the cheque. The verification of the complaint u/s

200 Code of Criminal Procedure is altogether different since said verification is required to be made in order to determine prima facie truthfulness

of the complaint for the purpose of issuing process. In my opinion, therefore a complaint u/s 142 of the Negotiable Instruments Act is required to

be in writing and signed by the complainant. Any complaint which is not signed by the complainant is, therefore, incomplete and on an incomplete

complaint, no cognizance can be taken u/s 142 of the Negotiable Instruments Act. Besides this, verification u/s 200 Criminal Procedure Code in

this case was done on 6.5.1996 and admittedly on this date, the complaint was barred by limitation u/s 142(b) of the Negotiable Instruments Act

which requires that such a complaint is required to be made within one month from the date on which the cause of action arises under Clause (c) of

the proviso u/s 138 of the said Act, On the date of verification, the complaint in question was barred by limitation and obviously the Magistrate

could not have taken cognizance of the same.

In that case, the applicant before this Court had filed a complaint u/s 138 r/w. 141 of the Act on March 6, 1996. The complaint was neither signed

nor verified by the complainant, but the complaint was signed by M/s. Crawford Bayley, Advocates for the complainant. It further appears that no

vakalatnama was given by the complainant in favour of the said Advocates for the purpose of filing the complaint. The verification of the complaint

u/s 200 of Cr.P.C. was recorded on May 6, 1996 and the process was issued against the respondents therein on September 17, 1996. The

application for recalling process was filed by the respondents on March 23, 2001, which was resisted by the complainant by filing reply on July 12,

2001. Relying upon the judgment in the case of M.A. Abdul Khuthoos Vs. Ganesh and Company Oil Mills, , the learned Magistrate allowed the

application and recalled the process by holding that the complaint was not a complaint in the eyes of law. This judgment was delivered on March

4, 2002.

16. Mr. Desai invited our attention to the judgment of the learned Single Judge (R.K. Batta, J.) in the case of Vijay (Supra), paragraph 5 of the

judgment reads as under:

5. It is, no doubt, true that Section 142(a) of the Negotiable Instruments Act enjoins that no court shall take cognizance of any offence punishable

u/s 138 except upon a complaint in writing. Nevertheless, this is a case where, though the complaint was made in writing it was not signed and the

Magistrate on the same day had examined the complainant u/s 200 Criminal Procedure Code and obtained signatures of the complainant on the

same day. On that date, the complainant was well within the period of limitation. In this view of the matter, I am of the opinion that nonsigning of

the complaint does go to the root of the matter whereas rulings upon which reliance has been placed relate to the bar on account of mandatory

requirement of registration, prior consent of Advocate General and prior sanction for prosecution which go to the root of the matter. In the case

under consideration, there is mere technical irregularity that the complaint was not signed, but the complainant was very much available in the Court

and even his signature could have taken by the Court, but it appears that this fact was not noticed. The complainant was examined u/s 200,

Criminal Procedure Code on the same day and his signatures were taken on the verification.

In that case, the respondent No. 1 filed a complaint before the Magistrate u/s 138 of the Act r/w. Section 403, 406 and 420 Indian Penal Code,

1860 against the applicants. The complaint was presented on November 22, 1996 and on the same day, the complainant was examined u/s 200 of

the Cr.P.C.. By order dated February 6, 1997, process was issued u/s 138 of the Act. An application for dismissal of the complaint, as the same

was not signed by the complainant and as such was not maintainable, was made on April 1, 1997. The application was disposed of by order dated

January 14, 1999 holding that the learned predecessor had already taken cognizance of the case and the process was issued as such the accused

could not raise objection. This judgment was rendered on September 16, 2002.

17. Mr. Desai further invited our attention to the judgment of the learned Single Court of the Karnataka High Court in the case of K.M.

Maregowda Vs. Seven Hills Ex-Import Corporation, After considering the provisions of the Act as also the judgment of the Apex Court and other

High Courts, the learned Judge observed in paragraph 9 as under:

9. It is trite that while construing a mandatory provision prescribing eligibility criteria, nothing could be added or deleted. So, the words ""and

signed"" or ""under the signature"" cannot be added after the words ""in writing"" appearing in Section 142(a) of the Act referred to already. If the

Legislature intended that the complaint should also be signed by the complainant, it would have added the words referred to above but,

deliberately, not done so for the reason that, in such an event, juristic person or body corporate etc., could not file complaints, thereby negating the

remedy provided u/s 138 of the Act. So, the argument, that the complaint should be under the signature of the complainant cannot be upheld.

In that case, the respondent before the High Court, presented a complaint before the Court through its power of attorney holder for offence

punishable u/s 138 of the Act under the signature of power of attorney holder. After taking cognizance, the power of attorney holder was

examined upon oath by the learned Magistrate and thereafter the process was issued. On behalf of the petitioner accused it was submitted that in

view of Section 142 of the Act, the complaint filed by the complainant through the power of attorney that too, without the signature of the

complainant to it, was not at all proper and recording of sworn statement of the general power of attorney holder cannot be taken as examining the

complainant as envisaged u/s 200 of the Cr.P.C., subsequently, the proceedings required to be quashed.

18. Mr. Desai also strongly relied upon the judgment of the learned Single Judge of the Punjab and Haryana High Court in the case of M.S. Shoes

East Ltd. and Anr. v. Modella Knitwear Ltd. and Anr. 103 Comp Cas 816. In that case, the order dated November 11, 1997 passed by the

Court of Judicial magistrate, Chandigarh was challenged in a Criminal Revision before the High Court. By that order, the learned Magistrate

disposed of two applications filed by the complainant Modella Knitwear Ltd. and the other by M.S. Shoes East Ltd. Modella Knitwear Ltd.

submitted an application before the learned Magistrate in complaint u/s 138 of the Act with a request for granting it permission to put signatures on

the complaint or in the alternative to treat the documents of the complaint duly signed attached with the application as part of the original complaint.

M.S. Shoes East Ltd. filed reply praying for dismissal of the complaint on the ground that the complaint was not signed by the payee or the holder

in due course of the cheque and as such requirement of Section 142(a) of the Act was not complied with and the complaint u/s 138 of the Act is,

therefore, liable to be dismissed. The unsigned complaint is no complaint in the eyes of the law and thus the Magistrate could not take cognizance

nor could summon the accused. Moreover, the defence of the petitioner was prejudiced because of the absence of signature on the complaint. The

learned Magistrate passed following order:

Present: Complainant in person.

Complaint presented today. The same be made over to the court of Miss Harpreet Kaur, learned Judicial Magistrate, First Class, Chandigarh for

disposal according to law. The complainant is directed to appear before the court on April 17, 1996.

Announced :16496.

(Sd.) Chief Judicial Magistrate

Chandigarh

19. It was observed that the complaint was not signed inadvertently by the complainant though the complaint in writing was presented in the Court

by him personally and the learned Magistrate took cognizance on the basis of written complaint. In paragraph 21 of the judgment, passage from

the judgment of the Apex Court in the case of Chittaranjan Das Vs. State of West Bengal, to the following effect was reproduced:

Requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of

matters which are not of vital or significant importance in a criminal trial, may some times frustrate the ends of justice. Where the provisions

prescribed by the law of procedure are intended to be mandatory the Legislature indicates its intention in that behalf clearly and contravention of

such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure

are not of vital importance but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the

contravention in question has caused prejudice to the accused. This provision is made clear by Sections 535 and 537 of the Criminal Procedure

Code.

After considering the authoritative pronouncement of the Apex Court, where the noncompliance with the mandatory provisions are not of vital

importance but are nevertheless intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention

in question has caused prejudice to the accused. It was further observed that the accused was contesting the case from the time of his appearance.

The notice of accusation has been served upon the accused and the learned defence counsel had not been able to show as to what prejudice has

been caused to the accused due to omission of the signature of the complainant. If no prejudice has been caused to the right of accused due to this

omission then the mere omission of the signature cannot be a ground to dismiss the complaint. After considering the provisions of Section 142 of

the Act, the learned Judge observed thus:

A reading of the above section would show that no court would take cognizance of any offence punishable u/s 138 except upon a complaint, in

writing, made by the payee or, by the holder of the cheque in due course. This section starts with a specific provision that the provisions of the

Negotiable Instruments Act shall apply notwithstanding anything contained in the Code of Criminal Procedure with regard to those provisions given

in subsections (a), (b) and (c) of this section, i.e., Section 142. Thus, in order to constitute a valid complaint for the purpose of Section 138 of the

Act, there should be a complaint and that complaint must be in writing. A close scrutiny of the provisions of Section 142 of the Act is not

obligatory on the part of the complainant to establish that his complaint was signed by him or it. The word ""complaint"" has not been defined under

the Act, but luckily it has been defined under the Code of Criminal Procedure and according to Section 2(d) of the Code ""complaint"" means any

allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or

unknown, has committed an offence, but does not include a police report. The complaint u/s 138 of the Act is supposed to be tried as a warrant

case instituted otherwise than on a police report. The scheme of the Code shows that wherever the Legislature wanted that any action on the part

of a litigant should be signed, it has so stated in the relevant provisions. However, where the Code wants that a written complaint would be enough

for the purpose of taking cognizance, or for the purpose of summoning the accused the things can go in that fashion without any difficulty. I would

like to make a mention of Section 190 of the Code of Criminal Procedure. As per this section the magistrate of the first class or second class can

take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not talk that the complaint should be

signed by the complainant. I have already incorporated the definition of ""complaint"" as defined under the Code. As per Section 200 of the Code

once a complaint is instituted before a magistrate, he is supposed to examine upon oath the complainant and the witnesses. Their statements are

supposed to be reduced into writing and those statements are further supposed to be signed by the complainant and the witnesses, meaning

thereby that the complaint can be instituted in writing. It need not be signed by the complainant but the statement which shall be made by the

complainant or on his or its behalf shall be reduced into writing and such statement is supposed to be signed by the complainant. Besides that, the

statements of the witnesses examined by the complainant are also supposed to be signed, meaning thereby wherever the Code wanted that a

particular act should be signed, it has to be signed. If the Code wants a written document and if a complaint is filed in writing before a Magistrate,

who has taken cognizance over the matter, such a complaint is not bad in the eyes of law. To proceed further, I would also like to refer to the

provisions of Section 154 of the Code of Criminal Procedure, which again states that every information relating to the commission of a cognizable

offence, if given orally to the officer in charge of a police station, shall be reduced into writing. It shall be read over to the informant and it shall also

be signed by the person, who gives the information. Similarly, a reading of Section 164 of the Code indicates that if the magistrate is to record a

confession, as per Sub-section (4) of this section it is supposed to be signed by the person making the confession.

20. Mr. Desai also invited our attention to the judgment of the Division Bench of Andhra Pradesh High Court in the case of S.P. Sampathy Vs.

Smt. Manju Gupta and Another, , where the complaint was filed u/s 138 of the of the Act. It was held that from perusal of Section 5 of the

Cr.P.C, it is clear that the same lays down the procedure for trial Court of all criminal cases except under any special or local law for the time

being in force or any special form of procedure prescribed by any other law for the time being in force. Therefore, for the purpose of taking

cognizance, the provisions of Cr.P.C. have been excluded by Section 142 of the Act and any reference or reliance placed on Section 198 or

Chapter XX of the Cr.P.C. is misplaced. The trial Court gets jurisdiction to entertain a complaint only on satisfaction of two conditions (1) that the

complaint should be in writing and (2) it should be made by the payee or holder in due course of the cheque. When the law demands that the

complaint should be in writing by the payee that means the complaint should be made and signed by the payee or the holder in due course. In that

case the complaint was made in the name of the complainant but signed by his power of attorney holder. It was held that the complaint cannot be

signed by the power of attorney holder on behalf of the payee u/s 138 of the Act. The complaint can only be filed in writing by the payee or holder

in due course of the cheque.

21. Mr. Desai invited our attention to the judgment of the Apex Court in the case of Pankajbhai Nagjibhai Patel v. State of Gujarat and Anr.

(2001) 2 SCC 595. After considering Section 142 of the Act, it was observed in paragraph 6 as under:

6. It is clear that the aforesaid non obstante expression is intended to operate only in respect of three aspects, and nothing more. The first is this:

Under the Code a Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving

information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of

the NI Act says that insofar as the offence u/s 138 is concerned no court shall take cognizance except upon a complaint made by the payee or the

holder in due curse of the cheque.

He further submitted that for the purpose of computing the period of limitation what is relevant is the date when the complaint is filed or criminal

proceedings are initiated and not the date when the Court/Magistrate takes cognizance or issues process. In support of this submission, he relied

upon a judgment of the Apex Court in the case of Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394. In the alternative, he submitted

that non signing of the complaint is mere irregularity and not illegality. Not signing of the complaint does not affect the proceedings and the

irregularity is curable. He submitted that in the instant case, the learned Magistrate recorded that on June 3, 1998 the complaint was presented in

person. Originally, Mr. Rego, Senior Manager (Accounts) had presented the complaint on June 3, 1998. The verification statement was signed by

said Rego before the learned Magistrate on July 30, 1998. His name was substituted by inserting the name of Mr. T.R. Suryanarayanan,

VicePresident - Business Accounts Polyester and the cause title of the complaint was signed by Mr. Suryanarayanan. He did not dispute that the

complaint was not signed by the said Rego when it was presented before the learned Magistrate. However, the verification statement was signed

by the said Rego on July 30, 1998 before the learned Magistrate.

22. Before we consider the rival submissions advanced on behalf of the parties, it would be advantageous to appreciate the scheme of the Act.

The Act was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new

Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the

cheque. These provisions were incorporated with a view to encouraging the culture of use of cheques and enhancing the credibility of the

instrument. The provisions prior to Amendment Act 55 of 2002 in the Act, namely, Sections 138 - 142 in Chapter XVII were found deficient in

dealing with dishonour of cheques. Not only the punishment provided in the Act was proved to be inadequate, the procedure prescribed for the

Courts to deal with such matters was found to be cumbersome. The Courts were unable to dispose of such cases expeditiously in a time bound

manner in view of the procedure contained in the Act.

23. A large number of cases were reported to be pending u/s 138 of the Act in various courts in the country. Keeping in view the large number of

complaints under the said Act pending in various Courts, a Working Group was constituted to review Section 138 of the Act, and make

recommendations as to what changes were needed to effectively achieve the purpose of that section. The recommendations of the Working Group

along with other representations from various institutions and organisations were examined by the Government in consultation with the Reserve

Bank of India and other legal experts, and a Bill, namely, the Negotiable Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on

July 24, 2001. The Bill was referred to Standing Committee on Finance which made certain recommendations in its report submitted to Lok Sabha

in November, 2001. Keeping in view of the recommendations of the Standing Committee on Finance and other representations, the provisions of

Section 138, 141, 142 were amended. Section 143 - 147 were inserted by the Negotiable Instruments (Amendment and Miscellaneous

Provisions) Act, 2002 w.e.f. February 6, 2003. The said amendments in the Act are aimed at early disposal of cases relating to dishonour of

cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as

exempting an official nominee director from prosecution under the Act. However no amendment to the existing Section 142(a) of the Act was

made.

24. It is basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by

word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not

otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplus

age or redundant. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard

to the scheme of law. Scope of legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and

unambiguous. In other words, statutory enactments must ordinarily be construed according to their plain meaning and no words shall be added,

altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or

totally irreconcilable with the rest of the statute, as laid down by the Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt.

Ltd. and Others, .

25. Section 142 of the Act reads as under:

142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) no Court shall take cognizance of any offence punishable u/s 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 u/s 138.

The controversy in the present case concentrates on construction of Section 142(a) of the Act and in particular phrase ""in writing"" employed

therein. It provides that notwithstanding anything contained in the Cr.P.C., no Court shall take cognizance of any offence punishable u/s 138 of the

Act except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. The moot question in the

instant case is what is meant by complaint in writing, whether the complaint should be in writing simplicitor or complaint being in writing requires

signature below such writing.

26. In the light of the judgment of the Apex Court in the case of Bhavnagar (supra), let us analyse the provisions of the Act. Section 4 of the Act

defines Promissory Note to mean an instrument in writing (not being a banknote or a currency note) containing an unconditional undertaking,

signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Section 5 of the

Act defines Bill of exchange to mean an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to

pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. Section 6 of the Act defines a cheque.

Explaination I(a) thereof reads thus:

a cheque in the electronic form"" means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a

secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto

system.

27. Section 2(d) of the Cr.P.C. defines the complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking

action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The

comparison of Section 2(d) of the Cr.P.C. and Section 142 of the Act shows that;

(1) whereas u/s 2(d) of the Cr.P.C. complaint can be made either orally or in writing, under the provisions of the Act the complaint has to be

necessarily in writing.

(2) whereas the complaint under Cr.P.C. can be made by any person, in so far as the complaint under the Act is concerned, it can be filed only by

the payee or holder in due course of the cheque.

28. As observed by the Apex Court in the Case of Pankajbhai Nagjibhai Patel (Supra), it is clear that the nonobstante expressed in Section 142 is

intended to operate only in respect of three aspects that are as under:

(1) under the Cr.P.C. a Magistrate can take cognizance of offence either upon receiving a complaint or upon the police report or upon receiving

information from any person or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Cr.P.C. u/s 142 of the Act

in so far as the offence u/s 138 is concerned, no Court shall take cognizance except upon a complaint made by payee or the holder in due course

of the cheque.

(2) under the Cr.P.C. complaint can be made at anytime subject to the provisions of Chapter XXXVI. As far as the offence u/s 138 of the Act is

concerned, such complaint has to be made within one month from the date on which cause of action arises under Clause (c) of the proviso to

Section 138.

(3) Under Article 511 of the first Schedule of the Cr.P.C. if the offence is punishable with imprisonment for less than three years or with fine only

under any enactment (other than IPC) such offence can be tried by any Magistrate. Normally, Section 138 of the Act which is punishable with

maximum imprisonment of two years would have fallen within the scope of said Article, But Section 142 of the Act says that for the offence u/s

138, no court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class shall try the said offence. Thus, nonobstante

clause in Section 142 of the Act is not intended to expand the powers of the Magistrate of the First Class beyond what is fixed in Chapter III of

the Cr.P.C.

29. Under the provisions of the Cr.P.C. wherever the Legislature intended that something is required in writing coupled with the signature below

the said writing, the Legislature has specifically provided therefor. Mr. Desai invited our attention to Sections 61, 70, 154, 162, 164(4), 200, 203,

204, 207 and 281 of the Cr.P.C. Section 200 of the Cr.P.C. to the extent it is relevant to the present controversy reads as under:

200.Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the

witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the

witnesses, and also by the Magistrate:

Thus, when the Magistrate takes cognizance of offence on complaint, he has to examine upon oath the complainant and the witnesses present, if

any, and substance of such examination has to be reduced in writing and has to be signed by the complainant and the witnesses and also by the

Magistrate.

30. The submission of Mr. Saraogi, learned Counsel that as a measure of safeguard the complaint has to be signed by the complainant, in our

opinion, does not consider the importance of signed verification statement of the complainant. If ultimately the prosecution is found to be frivolous

or otherwise mala fide, the Court can direct the registration of the case against the complainant for mala fide prosecution of the accused. The

accused would also be entitled to file a suit for damages. The verification of the complaint is essential u/s 200 of the Cr.P.C. before taking

cognizance of the offence not only with a view to finding out prima facie truth but also identifying the person, who, in case the prosecution is found

to be frivolous or mala fide, would be answerable to the charge of perjury or indemnify the accused. When the complainant gives statement before

the Magistrate in support of his complaint, it is implicit that if certain statements are found to be false, then the identify of perjurer is explicitly made

clear. So also, if the complaint is found to be malicious and frivolous, then the action for recovering the compensation can be taken against such

complainant The apprehension expressed by Mr. Saraogi, in our judgment, is wholly unfounded. Even, as per Section 190 of Cr.P.C., the

Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not lay down that the

complaint has to be signed by the complainant. Combined reading of Sections 190 and 200 of the Cr.P.C. and Section 142(a) of the Act, leads to

the conclusion that under the Act the complaint can be instituted in writing, however, it need not be signed by the complainant. But the Magistrate

taking cognizance shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be

reduced to writing and such statement is required to be signed by the complainant.

31. We are further of the opinion that that the language employed in Section 142(a) of the Act is plain, unambiguous and clear. We consequently

cannot add the words ""and signed by"" and delete comma and the words ""made by"" after the words ""in writing"" occurring in Section 142(a) of the

Act. We are also unable to agree that the phrase ""in writing"" will also include the words ""signed by"" as we are of the opinion that wherever the

Legislature intended that the something is required in writing coupled with signature below such writing, the Legislature has specially provided

therefore both under the Act. It is required to be noted that as per Section 2(d) of the Cr.P.C., a complaint can be either oral or in writing. If the

contention of Mr. Saraogi is to be accepted, it would mean that wherever complaint is made in writing as per Section 2(d) of the Cr.P.C., such

complaint would not be maintainable and it will have to be rejected once it is found that the same is not signed. It is, therefore, not possible to give

such a meaning by adding the word ""signature"" when the Legislature only contemplated the complaint in writing and not beyond that.

32. In the present case, as noted earlier the complaint was presented in person on June 3, 1998. The complaint was verified on July 30, 1998 and

the verification statement was duly signed by the authorised Officer of the complainant. We fail to appreciate as to how any prejudice is caused to

the accused for non signing the complaint. The statement made on oath and signed by the complaint safeguards the interest of the accused.

Considering the aforesaid aspects, we are clearly of the opinion that the requirement of Section 142(a) of the Act is that the complaint has

necessarily to be in writing and the complaint can be presented by payee or holder in due course of the cheque. It need not be signed by the

complainant. If the Legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the

complainant, the Legislature would have used different language.

33. In the light of the view taken by us, we respectfully agree with the law laid down by the learned Single Judge of Panjab and Haryana High

Court in the case of M.S. Shoes East Ltd. (supra) as also judgment of the learned Single Judge of the Karnataka High Court in the case of K.M.

Maregowda (Supra). In so far as the judgment of the learned Single Judge of this Court in the case of Roy Joseph (Supra) is concerned, in

paragraph 10 of the Judgment, the learned Single Judge reproduced the legal requirement of a valid complaint for the purpose of the Act. After

quoting observations of the Apex Court in the case of Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya 2006 AIR SCW 4582, the

learned Judge observed as under:

The statutory provision requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant, is,

therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken u/s 142 of the Negotiable Instruments Act.

With great respect, we are unable to subscribe to the said view. In our opinion, the learned Single Judge, with utmost respect, has mixed up the

requirement of complaint in writing u/s 142(a) of the Act with that of verification at the time of taking cognizance u/s 200 of the Cr.P.C. that

requires signature of the complainant. We are also unable to subscribe to the view expressed by the learned Single Judge of this Court in the case

of Finolex Industries(Supra), wherein it was held that a complaint u/s 142 of the Act is required to be in writing and signed by the complainant.

That judgment was rendered on March 4, 2002. The verification of the complaint u/s 200 of the Cr.P.C. is necessary and the purpose of such

verification before taking cognizance of the offence is essential not only with a view to finding out prima facie truth, but also, for safeguarding the

interest of the accused.

34. As far as the judgment of the learned Single Judge in the case of Vijay (supra) is concerned, the learned Single Judge in paragraph 5 observed

that: