Madras High Court
A. Vinayagam And 3 Others vs Dr. Subash Chandran And Another on 10 January, 2000
Equivalent citations: 2000(2)ALD(CRI)150, [2001]103COMPCAS569(MAD), 2000CRILJ1579, 2000(1)CTC225
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER Judgement pronounced by V.S. Sirpurkar, J.
1. This judgment shall dispose of the two Criminal Original Petitions they being Crl.O.P.Nos.10902 of 1998 and 6369 of 1999. A reference has been made in Crl.O.P.No.l0902 of 1998 by the learned Judge (M. Karpagavinayagam,J.) in the following terms:
"In order to decide as to whether the complaint for the offence under Section 138 of the Negotiable Instruments Act filed before the court is within time, which is the date to be taken into account? Is it the date of presentation made before the court or the date on which the court took cognizance?"
2. The said reference was necessitated on account of there being a conflict between two decisions of this Court, both by the learned single Judges of this Court. In D. Ramamoorthy v. K.J. Duraisamy, 1995 (1) L.W. (Crl.) 300, Janarthanam,J. had held that once the complaint for an offence under Section 138 of the Negotiable Instruments Act was presented within limitation and that presentation was noted by the court, even if the complaint is returned back to the complainant by the court and re-presented after the period of limitation still the complaint would be held to have been presented in time. Admittedly, a contrary view has been taken in G.L. Srinivasan v. M/s. Dhanalakshmi Industries, rep. by its Managing Partner Maruthachalam Chettiar, Crl.R.C. No.933 of 1993, wherein Raman, J. has held that if such complaint, which is filed in time, but returned to the party for re-presentation, is re-presented after the period of limitation then the court is precluded from taking cognizance on the ground for limitation provided under Section 142 of the Negotiable Instruments Act.
3. It is on this conflict that the two matters have come before us. Before we advert to the law involved in the matter, it would be better to note some salient factual features. In Crl.O.P. No.10902 of 1998, the complaint was filed on 29.11.1995, which was admittedly within limitation of one month as provided under Section 138 of the Negotiable Instruments Act since the notice to the accused to make the payment of the amount covered by the cheque was deemed to have been served on 30.10.1995. On that day, the Magistrate, before whom the matter was presented, made an endorsement, in his hands, to the effect that the age of the accused was not mentioned and the name of the drawee of the cheque was different in the complaint. It was on that account that the complaint came to be returned. This complaint was then re-presented on 3.5.1995, after curing the defects pointed out by the Magistrate. It is thereafter that the Magistrate took cognizance and issued summons to the accused on account of which, the accused has filed the present Criminal Original Petition No.10902 of 1998 for quashing the complaint on the ground that it was barred by limitation. Similar are the facts in Crl.O.P.No.6369 of 1999 also. The complaint was presented in time on 13.11.1998. It was fixed for consideration on 15.12.1998 by passing a specific order - "call on 15.12.1998". It was found that the fathers' names of the complainant and the accused as also their age were not mentioned and that bears the enforcement of 15.12.1998 made by the Magistrate. The complaint thereafter was returned to the complainant, which was re-presented on 13.1.1999, on which date the Magistrate was on leave. It was, therefore, again re-presented on 23.2.1999, but on that day there was no power of attorney and, therefore, ultimately came to be re- presented later on 4.3.1999. There after it seems that the complaint was registered as C.C. No.1323 of 1999 by the IX Metropolitan Magistrate, Saidapet and he issued summons for quashing of which, the present Criminal Original Petition No.6369 of 1999 was filed. The said Crl.O.P.No. 6369 of 1999 was ordered to be tagged with the Crl.O.P. No.10902 of 1998 and that is how both the petitions have come before us.
4. The learned counsel for the accused in both the cases Mr. Packiaraj, in his usual fair style, has stated the admitted facts before us and further contended that though the complaints originally came to be filed in time, the return of the said complaints by the Magistrate would amount to non-presentation of the complaint. He further urges that whether the Magistrate had the power to return the complaint or not factually speaking since the complaints were returned and not entertained by the Magistrate, in the sense that the Magistrate had not even taken cognizance of those complaints, the result would be that the complaints were never presented. He also pointed out that when the complaints were returned, the Magistrate had not fixed any dates for their re-presentation. The learned counsel urges that the complainants chose the dates for themselves for re-presenting the complaints, which were essentially beyond the period of limitation. The Magistrate, therefore, took the cognizance of the complaints on the dates, when the Magistrate could not have taken the cognizance because of the bar of limitation. Learned counsel also argued that the subsequent re-presentation could not have related back to the original date of presentation as there was, in fact, no presentation in law on the original date. In short, learned counsel relied on the judgment of Raman, J. and pointed out that both the complaints were bound to be quashed as barred by limitation. He has also relied on few decisions of the Supreme Court and this Court, which suggest that the law of limitation has to be interpreted in the strict terms and, therefore, any complaint filed beyond the period of limitation as provided in Section 138 of the Negotiable Instruments Act, could not be taken cognizance of by the concerned Magistrate.
5. As against this, the learned counsel, John Britto in Crl. O.P. No.10902 of 1998 and Mr. Om Prakash in Crl. O.P. No.6369 of 1999, earnestly canvassed that the complainants had presented their complaints admittedly in time and on that count, no fault could be found with the complainants. They pointed out that since the Magistrate had returned the complaints, the complainants were powerless in the matter and could not have done anything. They pointed out therefore that no fault could be seen on the part of the complainants, who were bound by the actions of the court in accepting the complaints back. Both the counsel fairly admitted that they did not challenge the action on the part of the Magistrate, but point out that the said action could not be said to be covered by a judicial order so that it could be challenged. Further they pointed out that once the court had chosen to issue summons on the basis of the complaints and once the accused had chosen to appear before the court, there could be no further question of going into the question of limitation by this Court since even the trial court itself could have decide the question of limitation.
6. On the backdrop of these conflicting submissions it has to be seen as to whether the complaints filed in both these matters can be said to be within limitation and whether it would be proper for this Court to consider the question.
7. Taking the last submission, it is true that the trial court could certainly go into the question of limitation more particularly because it has chosen to issue the summons and the accused has appeared before the court in both the matters. There could be no dispute that the question of limitation could be contested by the accused even during the trial. However, the learned counsel for the accused points out that there are conflicting views in the matter, which were likely to confuse the trial counts, resulting in anamolous situation and it would be, therefore, in the interest of justice, that this Court gives an authoritative decision on the question. It is only in that view of the matter and more particularly because of the reference made to us, that we would proceed to examine the rival contentions.
8. There is one common thread in the judgments of Janarthanam, J. and Raman, J., that is both the learned Judges have observed that the Magistrate concerned had power to return back the complaint filed before him. In his judgment, Janarthanam, J. has observed in paragraph 14:
"there is no specific provision available either in the Code of Criminal Procedure or in the Criminal Rules of Practice or in the special law like the Negotiable Instruments Act as to the return to be made for rectification of defects in the complaint presented before court. But, nonetheless once the power inheres in favour of the court to receive a complaint, it goes without saying that the power to receive a complaint must imply in itself the power to return it for rectification of the defects if any, noticed."
To the similar effect the observations by Raman, J., who observed in paragraph 6:
"It is no doubt true that in the Criminal Rules of Practice as well as in the Criminal Procedure Code, there is no provision empowering the Magistrate to return a complaint. It is equally true that when a court has a right to take a complaint on its file, it has equally the power or right to return the complaint.
Both the learned Judges, therefore, have seen nothing wrong in returning the complaint. They, however, differ in so far as the subsequent act of not fixing the date for re-presentation is concerned. Janarthanam, J. has chosen to hold that once initial presentation of the complaint is made within time and if the said complaint is returned for rectification of any defect prescribed in time, then it would have to be held that the complaints that are returned would be deemed to be within the custody of the court. He goes no further to hold that if the said defects are cured and the complaint is re-presented, even if the date of re- presentation is beyond the period of prescribed limitation, then, it would be deemed as if even during the period when the complaint papers were with the complainant those could still be held to be in the custody of court thereby the relevant date would be the date of initial presentation and not the date of re- presentation. The learned Judge has also further observed that a duty is cast upon the court while making the return to specify the period within which the return should be made after rectification of the defects. He has, however, taken a view that even if that was not done, the complainant cannot be held to suffer as not fixing a period for re-presentation would be a default on the part of the court which should not prejudice anybody as per the maxim "Actus curise neminem gravabit".
9. On the other hand, Raman, J. held that because of the initial defects in the complaint, the presentation itself was defective. In paragraph 5, learned Judge observes that:
for the purpose of establishing the fact that the accused did not made payment within 15 days of the receipt of notice, the production of acknowledgment card becomes essential. It was not produced along with the complaint. Therefore, the complaint was rightly returned. A complaint preferred without evidence to show the receipt of notice cannot be said to be a proper presentation of the complaint. In other words, it was an invalid presentation rather it was no presentation at all."
After holding that the criminal court could return the complaint, which is defective, the learned Judge has taken a stock of the other provisions of Section 138 of the Negotiable Instruments Act providing for the limitation on various stages and, ultimately, has held that the complainant cannot be allowed to take undue advantage of his own wrong of presenting a defective complaint and then taking an opportunity of filing the complaint any time that suited the complainant, which date was beyond the limitation. In paragraph 7, the learned Judge has held that since the Magistrate had not ordered issue of summons on the initial date and since "he had at first applied his mind for not proceeding further". The learned Judge actually says:
"he did not order process to the accused. Therefore on 3.6.1991, he did not take cognizance. He took cognizance only on 24.9.1991, after the period provided by Section 142(b)."
Thus it is clear that the learned Judge has, after finding that the Magistrate has power to return the complaint, also recorded a further finding that initially, while finding the defect in the complaint, the Magistrate had not taken cognizance. Again the learned Judge has mentioned that the cognizance was taken by the Magistrate only on the date when he issued summons. The learned Judge has then proceeded to hold that since the date of re- presentation of the complaint was beyond the period of limitation as provided by Section 142, the Magistrate had obviously erred in taking cognizance beyond the period of limitation. The learned Judge has also tried to show in paragraph 8 of the judgment that the Magistrate cannot return the complaint without specifying any time for re-presentation because if the matter of re-presentation is left to the sweet-will of the complainant then the complaint was likely to take undue advantage of the situation, which would be against the spirit of Section 138 of the Negotiable Instruments Act. The learned Judge had actually held:
that a Magistrate has to power to return the complaint without specifying the time for re-presentation. What cannot be directly done cannot be indirectly done. If such thing is allowed, it will amount to a party undoing what cannot be normally done".
The learned Judge has taken a stock of the decision of Janarthanam, J., cited supra, and has observed.
"Learned counsel for the respondent relied upon the decision of this Court reported in 1995 (1) L.W. (Crl.) 300, which is no doubt directly a decision on this point. But in my considered opinion the said decision has not taken into account the scheme of the section and the significance it has attached and (sic) to the period of time and the time factor. I have referred to the three essential conditions of section 138 and also section 142(c). These conditions strictly lay down that certain things have to be done within certain period. Therefore the Legislature was aware of the importance of the time schedule, the significance of doing certain things within certain period. If it is were so, can a 'return' by a Magistrate without specifying a date for re-presentation will (sic) put the case out of way of operation of sections 138 and 142. It cannot." (Italics Supplied) The learned Judge has then posed a question referring to the observation made by Janarthanam, J. that the act of the court should prejudice none and asked the question "Will it not at the same time prejudice the accused?" and has thereafter observed that even if such a re-presentation did not prejudice the complainant, it would cause prejudice to the accused. The learned Judge has again gone on to quote in that very paragraph that the original presentation itself was defective as a vital document, viz. the postal acknowledgment card was not enclosed along with the complaint. The learned Judge has against reiterated in the following words:
" But the very presentation of the first instance was not a proper presentation. Only when the complaint is filed into court with the acknowledgement card it becomes a complaint and proper presentation. Therefore in such circumstances, the mere fact of return by the court of the complaint in my view will not in any manner save the complaint from the bar of limitation impose by section 142(b). Therefore it has to be held that the complaint is not maintainable and hence the order of the court below has to be set aside".
The learned Judge in the last paragraph then has taken the stock of the complaint on merits and has also taken the note of the portions added to the complaint, which wad originally not there, and has ultimately chosen to al,low the revision, by quashing the prosecution.
10. As has already been observed earlier, both the learned Judges appear to have of the opinion that there was ample power or jurisdiction in the Magistrate to return the complaint for curing the defects (probably because the Magistrate had the power to accept the same) and that the crux of the matter was in the Magistrate not fixing the period for re-presentation. Janarthanam, J. has taken a further view that even if the period was not provided and the complaint was re-presented after the period of limitation since the act of the court, in not fixing the period of limitation, should prejudice none, the subsequent re-presentation was in order and could be referred back to the date of original presentation. While Raman, J. has held that the failure on the part of the Magistrate to fix a period of limitation could not be said to be an act which would prejudice none and that act of the court was not covered by the maxim "Adas curiae neminem gravabit".
11. On this backdrop, it would be better to first find whether a Judicial Magistrate of the first class, accepting the complaint, has the power to return the same. It is an admitted position in this case that the complaints were accepted by the concerned Magistrates, the Courts seals were put on the papers and the judicial court-fee stamps were also cancelled. Both the parties were fair enough to admit this. Then the court simply returned the papers, without making note thereof in any court records. It is also further an admitted position that on both the complaints the concerned Magistrate himself has made endorsements signifying the " so called defects". Then the Magistrate in both the cases. Justified in simply returning the papers, as they were, to the complainants though after signifying the defects in the complaints.
12. We have scanned the Criminal Rules of Practice, which govern the field. The Criminal Rules of Practice, as would be clear from the preamble, originated in 1931. Number of orders, notifications and administrative instructions have been issued by the Government and the High Court, in exercise of the powers conferred under Art. 227 of the Constitution of India, as also the other enabling powers. There have undoubtedly been amendments from time to time of these rules, but the fact remains that these rules are very much in vogue and govern the field. Rule 28 is covered in chapter III - " Investigation and prosecution by Police". Rule 28 deals with the complaint. The rule is as under:
"28. Complaints of offences whether oral or in writing shall be received on all working days at fixed hours by the Magistrate having jurisdiction to receive them. When the complaint is in writing, the complaint shall present along with the complaint as many copies on plain paper of the complaint as the number of the accused persons complained against".
The rule is clear that the complaint shall be received by the Magistrate and when in writing, the complainant shall present along with the complaint with copies thereof for the accused persons complained against.
13. " Complaint", in Criminal Procedure Code, is defined vide section 2(d). Section 2(d) as under:
"complaint" means any allegations 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.
Explanation - A report made by a Police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complainant;"
Therefore, one thing is certain that when a document styled as a complaint is to be filed by the complainant, it has to be presented to the Magistrate along with adequate number of copies of the complaint. In the same tune is Rule III, which is to be the following effect:
"111. Complaints to be presented in person or by pleader.- All complaints, applications, etc. shall be presented to the Magistrate by party in person or by his pleader.
The complainant shall present along with the complainant as many copies on plain paper of the complaint as the number of accused persons complained against."
14. The combined reading of section 2(d) of the Code of Criminal Procedure, which defines " complaint" and Rules 28 and 111 of the Criminal rules of practice would suggest that all that the complainant has to do for lodging a complaint is to present a complaint to the Magistrate. That would pre-suppose that the complaint is filed with proper court-fees, which would be paid along with the complaint. Careful scrutiny of the Criminal Rules of Practice as also the Code of Criminal Procedure does not show that anything more is required at this stage to be presented by the complainant or that any documents are also required to be filed along with the complaint. Once a complaint is filed, which answers the description in section 2(d) of the Code of Criminal Procedure along with proper court-fees and copies there would be no question of doing anything further at that stage. In this behalf,. chapter XV of the code of Criminal Procedure is extremely telling. It goes without saying, however, that section 200 of the Code of Criminal Procedure commences with the cognizance taken by the Magistrate. Chapter XV deals with the complaints to the Magistrate and provides for all that the Magistrate has to do after taking the cognizance, that the Magistrate has to do under section 200(a). When the Magistrate takes cognizance upon receiving a complaint under clause (a) of section 200, he acts on the basis of the contents in the complaint with a view to proceed in the matter and has the following courses open:-
I. He has to examine the complainant and his witnesses, if any.
II. after such examination, he may postpone the issuance of process by inquiring into the case by himself or directing an investigation to be made by a police officer.
III. If the Magistrate is convicted after the examination of the complainant or as the case may be his witnesses, he may decide to issue the process.
IV. He may straight away decide to dismiss the complaint, after such an exercise of examination of the complainant and the witnesses.
15. Law does not know or provide any other mode of dealing with the complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return then complaint just because he thinks that there are any defects. In this behalf, the observation by both the learned Judges that the Magistrate has a power to return the complaint because he has a power to accept is clearly incorrect. In the first place, the Magistrate does not have a "Power" to accept the complaint. That is not the power of the court. That is the "duty" on the part of the court in contradistinction to its "Powers". Again unless there is a specific provision in the Code or the Rules, the Magistrate cannot find out his own procedure by returning the complaint as it is. In fact, when the complainant presents the case to the Magistrate that is not the stage of examining the defects and it is not for the Magistrate to examine the so called defects in the complaint. All that the Magistrate has to do is to consider the same by ordering the examination of complainant and /or as the case may be, his witnesses. It was strenuously suggested that if there are some formal defects like the age is not stated or the name of the father of the accused is not stated, the complainant should get a fair chance to correct the defects. We only observe that it is for the complainant to produce a defectless complaint, if because of such defects, such as non-mentioning of the age and names of father, etc., the identity of the accused person becomes suspicious or is not established properly then, the complainant must suffer for his defective complaint, but, under no circumstances, could the Magistrate return the complaint particularly after the court-seal had been put on that complaint and the court-fee stamps have been cancelled then, as rightly found by Janarthanam, J., the complaint becomes the court property.
16. In fact, Janarthanam, J. in a later judgment in T. Vanamalai v. T.D. Sundara Varadhan, 1995 (2) L.W. (Crl.) 405 has recommended issuing a general direction to the Criminal Courts to affix the court-seal on any document received by the court, which is filed before it in day-to-day administration. In the case, the learned Judge has found that the court had not put the court- seal on the complaint received by it and chose to send the said unsealed copy of the complaint to the accused, which bore the date "23.11.1992" when, in fact, the cause of action had arisen in that case on 24.11.1992. The learned Judge ultimately, on facts, came to the conclusion that though the Magistrate had failed to affix the seal of the court, in fact, the complaint was presented to the Magistrate much later, i.e. on 7.12.1992 when the cause of action had already arisen. However, nothing the apathy on the part of the Magistrate such direction was recommended by the learned Judge to the effect that every paper, including the complaints received, must bear the court-seal and the court must see to it that the seal is affixed on those papers. The learned Judge has, in fact, mentioned in paragraph 11 that there has been a consistent practice of affixing the seals on all the complaints and copies thereof and even in respect of any document received in court being filed in day-to-day administration. Before us it was not disputed that when the complaint in both the cases were presented to the Magistrate, court-seals were put thereon and the court-fee stamps were cancelled. Therefore, it will have to be held that the papers became the court's property and merely because the complaints were returned to the complaints, the papers did not lose their character as the court's property. If that be so, then even if the complaints were re-presented after the period of limitation, it would be of no consequence and the date of original presentation would have to be deemed to be the date of presentation. If that was within limitation, the complaints would have to be treated as within limitation.
17. In this behalf, we may also consider one more fact and that is Rules 9, 10 and 11 under Chapter IV, which is for "Institution of Proceedings", of the Madras High Court Appellate Side Rules, 1963, Rule 9 reads as:
"9 (1) Every proceeding which is not instituted in conformity with the provisions of the Code, or of these rules or of any special enactment or of the rules applicable to it, shall be returned to the amendment and representation. Unless the Registrar prescribes a shorter period, the proceeding shall be represented after compliance with all the defects pointed out, within ten days after the notification of the defect, on the board of the Court.
(2) Every proceeding re-presented either without rectifying all the defects pointed out or after the expiry of the time allowed under the preceding sub-rule should be accompanied by a petition for extension of time supported by an affidavit where necessary.
(3) The period prescribed for re-presentation shall be computed afresh for each return pointing out fresh defects.
(4) Proceedings re-presented after a period of three months after the expiry of time allowed will be posted before Court marked "not re-presented in time for orders".
Rule 10 provides that the time fixed by the rules in doing any act can be extended only on a duly stamped application, while Rule 11 suggests that where no such time limit is fixed for doing any act, the Register, in his discretion, may fix the time within which the act should be done and may grant such further time as he deems proper in the circumstances of the proceeding. Thus, under these rules, the Registry of this High Court could return back the papers presented to it in a defective manner. Thus there is a specific power to return back the papers to the party and that too, after fixing a specific time limit. The existence of such rules would only suggest that the papers could not be simply returned by the Magistrates without there being any rules in this behalf. We have shown the rules only to highlight the absence of such rules in the matter of return of the complaint by the Magistrates. Absence of such rules applicable to the filing the High Court, would be all the more telling in the circumstances and would suggest that the action on the part of the Magistrates in returning the complaint papers was completely baseless.
18. Much has been said in this behalf by Raman, J. that the filing of the complaint without the necessary papers like postal acknowledgment car, etc., would be a defective presentation and, therefore, would be no presentation in the eye of law. We do not agree. There is nothing in the Code to suggest that the complainant should produce all accompanying papers along with the complaint. A Magistrate would still take cognizance when he directs the complainant's statement to be recorded, It is misnomer that the Magistrate has to issue a summons when he takes cognizance or that he takes cognizance only if he issues the summons or refuses to do that. When the Magistrate applies his mind to the complaint and proceeds along with it in the manner provided by Section 200 and onwards, the Magistrate has taken cognizance of the complaint. Issuing of process or dismissing the complaint under Section 203 has got nothing to do with the taking cognizance, though taking cognizance is an essential step to be taken by the Magistrate before either issuing summons, postponing to issue summons or acting under Section 203 in dismissing the complaint. The position in law in that behalf is completely settled. We therefore do not agree with Raman, J. when the learned Judge suggests that the initial filing of the complaint without the necessary documents was defective filing and, therefore, amounted to no filing. It must be taken that the complaint was filed when it was properly presented to the court along with the proper court-fee. The further technical defects have no concern with this filing and the Magistrate, at that stage, cannot start pointing out those defects to the parties and, on that basis, return the complaint and the whole papers to the complainant or to his counsel.
19. In this behalf, it was pointed out by Mr. Om Prakash, learned counsel for the complainant, that the Apex Court has observed in the celebrated decision in U.P. Pollution Control Board v. M/s. Modi Distillery, :
"The learned single Judge has focused his attention only on the technical flaw in the complaint and has filed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messers Modi Distillery and further more, the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by substituting the name of Messers Modi Distillery Industries Limited ...."
Learned counsel, therefore, submits, and in our view rightly, that when the Magistrate finds some technical defects such as the misdescription of the parties or failure to give complete descriptions, such defects could be asked to be corrected by the Magistrate by giving time for consideration of complaint. It was argued before us that, at times, Magistrate may not have time, immediately on the presentation of the complaint, to examine and point out those defects to the parties so as to afford them with an opportunity to cure the defects. We may only say that under such circumstances, the Magistrate can appoint a day for consideration of the complaints and the party then may cure those defects with the leave of the Magistrate. However, it cannot be conceived that the Magistrate can straight away return the papers with or without any endorsements on that complaint. Law does not know such a course.
20. It was also expressed that there was a practice of giving number to the complaints only on their registration and that could happen only at the time when the summons is ordered to be issued. In our opinion, it is a completely incorrect practice. It was expressed that when the complaints are presented, they are not noted by the Magistrates, nor any number is assigned to them and, therefore, in the absence of any registration, the Magistrates are justified in returning the complaints. We do not agree. A complaint presented to the Magistrate and kept aside for consideration must be noted in the concerned court register. There would be no question of such a complaint lying in the custody of the Magistrate also without any endorsement or without being reflected in the register maintained by the court. It is necessary that a separate register may be maintained in every court where such complaints could be entered. That would undoubtedly give a sanction to such presentation and would be a additional check regarding the limitation. However, it is unthinkable that the Magistrate should have a power just to return back the papers without doing anything and to direct the complainant or as the case may be his counsel to re-present the complaint whenever it pleases them.
21. It has been found by Raman, J. that for lodging a complaint under Section 138 steps are required to be taken within the time-frame provided under Section 138. There could be no doubt about that. However, from that alone it cannot be said that the relevant time of filing the complaint should coincide necessarily with the Magistrate's taking cognizance. Section 142 of the Negotiable Instruments Act is as under:
"142. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no court shall take cognizance of any offence punishable under section 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;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
The wording in clause (b) is important and it suggests that the 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. That section does not speak of either cognizance or issuance of process. If clause (b) is read along with clause (a), it only suggests that a court shall not take cognizance of an offence punishable under Section 138 unless the complaint in that behalf is made within one month of the date on which the cause of action arises. The thrust is only on "making the complaint" meaning thereby "presenting it to the Magistrate". The concept or its cognizance or the concept of issuance of process on the basis of such complaint are simply not to be found in the whole section. It is clear position of law that once the complaint is filed within time contemplated under Section 142(b), the cognizance could be taken later. In all Section 142(b) mandates only that the complaint should be made (filed) within one month of the date on which the cause of action arises under clause (c) of proviso to Section 138. The limitation is undoubtedly provided only for filing the complaint and not for taking its cognizance or even for issuing the process. There is nothing in that clause indicating or bringing fetters on the power of the Magistrate to take cognizance on a complaint which has been filed with limitation i.e., within thirty days of the date on which the cause of action arises under clause (c) of proviso to Section 138. Such fetters may come by the general law of limitation contained in Section 468 of the Code of Criminal Procedure, but that is not the case here. We are not on the subject of cognizance of the offences, but on the subject of making the complaint and that would be only when the complaint is presented to the Magistrate.
22. Turning now to the cases at hand, it is clear that the complaints in both the cases were filed in time. There is no dispute about the same. The Magistrates in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned counsel Mr. Packiaraj urged that those endorsements amounted to rejection of the complaints under Section 203 of the Code of Criminal Procedure and, therefore, the complainants should have filed further proceedings, challenging those endorsements, treating them to be judicial orders. In the first place, the said endorsements could not be termed to be judicial orders. They could at the most be termed to be administrative orders. Any judicial order could have been passed by the Magistrate, at that stage, only after examining the complainant and/or his witnesses. Without that, the Magistrate had no jurisdiction to pass any orders. Therefore, those orders cannot be simply described as the judicial orders and consequently, the complainants cannot be held guilty for not challenging them in the proper forum by way of a revision or appeal, as the case may be. Those order would have to be deemed as non est orders. Even is they can be termed to be the judicial orders, they were completely without jurisdiction as we have already shown. Not only this, the Magistrates, fixing their own procedure, also chose to return the complaints and again without fixing the date for re-presentation of the complaints. If then the complainant chose his time to re-present the complaint, could be complainant be blamed. It is the cardinal principle of law that the act of court should not prejudice any one - "Actus curise neminem Gravabit". The Supreme Court has reiterated this principle in Jang Singh v. Brijlal and others, . There the Supreme Court had refused to find fault with a party, who had made short payment by one rupee, for which the court was responsible. We would choose the same course by holding that once the complaints were filed within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for re-presentation, it should not be held that the subsequent filing by the complainants would be held to be beyond limitation. We therefore answer the reference by holding that the date, which is to be taken into account, would be the date on which the complaints were initially presented. They being within limitation, the complaints would have to be held as validly filed and on that count, the accused cannot claim any benefit. We also hold that the act on the part of the court of taking cognizance of the complaints has no concern with the date of filing of the complaint on a proper reading of Section 142(b).
23. We therefore send back the two Criminal Original Petitions to the Hon'ble single Judge to deal with them in the light of the observations made above. The reference is answered accordingly.