Negotiable Instruments Act, 1881 — Sections 138 & 142(a) — Complaint — Absence of signature of complainant —

June 22nd, 2013

Negotiable Instruments Act, 1881 — Sections 138 & 142(a) — Complaint — Absence of signature of complainant — Effect of — As per S. 142(a) of the Act, the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant — Further, various sections in the Code when contrasted with S. 2(d) of CrPC clarify that the legislature was clearly of the intent that a written complaint need not be signed — Therefore, complaint without signature of the complainant u/s 138 of the Act held to be maintainable when such complaint found to be verified by the complainant and the process issued by the Magistrate after verification — Contention that the limitation period expired on the date of verification and the complaint cannot be entertained, also held to be not acceptable, when the complaint filed within time and the crucial date for computing period of limitation held to be the date of filing of the complaint and not the date of taking cognizance by the Magistrate — Criminal Procedure Code, 1973 — Sections 2(d), 61, 70, 154, 164, 190, 200, 281, 468 & 473 — General Clauses Act, 1897 — Sections 3(56) & 3(65).

Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394, Relied on.

(Paras 13, 14, 15, 18 and 19)

HELD: The requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, 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 and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by the complainant.

(Para 15)

The crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of the Act.

(Para 18)

Indra Kumar Patodia v. Reliance Industries Ltd.[Bench Strength 2], Criminal Appeal No. 1837/2012 (Arising out of S.L.P. (Crl.) No. 8255/2010)(22/11/2012), 2013 AIR(SC) 426: 2012(11) JT 438: 2012(11) SCALE 271: 2012(8) Supreme 205: 2012(9) SLT 1: 2013(1) JCC 4(NI): 2013(1) Crimes 84(SC): 2013 CrLJ 1179 [P. Sathasivam, J.: Ranjan Gogoi, J.]

Entry Filed under: Consumer Laws