2006 (1) AIR Kar R 350

Karnataka High Court

Hon'ble Judge(s): Manjula Chellur , J

( A ) Negotiable Instruments Act (26 of 1881) S. 138 — Dishonour of cheque — Launching of prosecution or even obtaining conviction under S. 138, N.I. Act — Does not bar complainant from approaching Civil Court for recovery of amount which is legally recoverable.Any cause of action which gives right to the party to approach the Court if under law he is entitled to prosecute, it is at his option he can do so. Merely because it opts out to proceed on the criminal side, it does not stop him from proceeding in the Civil Court. Section 138 of N.I. Act being a quasi civil and criminal nature, definitely the trial Court went in wrong saying that the 138 proceedings could not have been launched at all by the complainant because of the pendency of the civil suit. Ultimately at the most if the complainant is successful in getting the fruits of the decree in the civil suit, it would be helpful only as a mitigating circumstance while imposing sentence under S. 138 of Negotiable Instruments Act. (Paras7)

( B ) Negotiable Instruments Act (26 of 1881) S. 138 — Criminal P.C. (2 of 1974), S. 190 — Dishonour of cheque — Premature presentation of complaint — Effect — 15th day after service of notice on accused happens to be 7-1-1997 — Complaint launched on 6-1-1997 — Cognizance taken by Court on 6-1-1997 and again on 5-4-1997 — It is 5-4-1997 Court applied its mind and stated that cognizance is taken — Under circumstances it can be said that trial court took cognizance only on 5-4-1997 and not on earlier date — Cognizance of offence is taken by Court on 5-4-1997 i.e. much after expiry of 15 days contemplated under S. 138 — Complaint not liable to be dismissed as premature — Expiry of notice period contemplated under S. 138 comes into effect only on date when Court took cognizance — Mere presentation of case does not mean taking of cognizance — Taking cognizance would only mean application of judicious mind of Court to facts of case pertaining to offence and not offender. (Paras911)