YOGENDRA PRATAP SINGHversusSAVITRI PANDEY & ANR.

                         [2012] 5 S.C.R. 192


A                  YOGENDRA PRATAP SINGH
                                  V.
                     SAVITRI PANDEY & ANR.
                 (Criminal Appeal No. 605 of 2012)

                           APRIL 03, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.)

       Negotiable Instruments Act, 1881 - ss. 138(c) and 142(b)
  - Offence punishable u/s. 138 - Whether cognizance of an
C offence could be taken on the basis of a complaint filed before
  expiry of the period of 15 days stipulated in the notice required
  to be served upon the drawer of the cheque in terms of s.
  138(c) - If no, whether the complainant could be permitted to
  present the complaint again notwithstanding the fact that the
o period of one month stipulated uls. 142 (b) for the filing of such
  a complaint has expired - Conflict in the judicial
  pronouncements - Matter referred to the larger bench -
  Reference to larger bench.

E      Respondent issued four cheques in the favour of
  appellant and the same were dishonoured when
  presented for encashment. The respondent was served
  with the notice on 23.009.2008 calling upon him to pay
  the amount. On 07.10.2008, which is before the expiry of
  the stipulated period of 15 days, the appellant filed a
F complaint under Section 138 of the Negotiable
  Instruments Act, 1881 against the respondent in the court
  of Additional Civil Judge, Magistrate. The Magistrate took
  cognizance of the offence on 14.10.2008 and issued
  summons to the respondent. The respondent filed a
G petition u/s. 482 Cr.P.C, challenging the said order. The
  High Court quashed the order passed by the Magistrate
  taking cognizance of the offence punishable uls. 138 of
  the Act since the complaint having been filed within 15

H                                192
 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 193
                  ANR.
days of the service of the notice, was premature and the      A
order passed by the Magistrate taking cognizance of the
offence on the basis of such a complaint is legally bad.
Therefore, the appellant filed the instant appeal.

     The questions which arose for consideration in the       B
instant appeal were whether cognizance of an offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 could be taken on the basis of a
complaint filed before the expiry of the period of 15 days
stipulated in the notice required to be served upon the       C
drawer of the cheque in terms of Section 138 (c) of the
Act and, if no, whether the complainant could be permitted
to present the complaint again notwithstanding the fact
that the period of one month stipulated under Section 142
(b) for the filing of such a complaint has expired?
                                                              D
    Referring the matter to larger Bench, the Court

      HELD: 1.1 Proviso to Section 138 of the Negotiable
Instruments Act, 1881 is all important and stipulates three
distinct conditions precedent, which must be satisfied        E
before the dishonour of a cheque can constitute an
offence and become punishable. The first condition is
that the cheque ought to have been presented to the
bank within a period of six months from the date on which
it is drawn or within the period of its validity, whichever
is earlier. The second condition is that the payee or the
                                                              F
holder in due course of the cheque, as the case may be,
ought to make a demand for the payment of the said
amount of money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of      G
the cheque as unpaid. The third condition is that the
drawer of such a cheque should have failed to make
payment of the said amount of money to the payee or as
the case may be, to the holder in due course of the
                                                              H
    194     SUPREME COURT REPORTS             [2012] 5 S.C.R.


A cheque within fifteen days of the receipt of the said notice.
  It is only upon the satisfaction of all the three conditions
  mentioned and enumerated under the proviso to Section
  138 as clauses (a), (b) and (c) thereof that an offence
  under Section 138 can be said ta have been committed
B by the person issuing the cheque. [Para 5) [200-F-H; 201-
  A-C]

       1..2 Section 142 of the Negotiable Instruments Act
  governs taking of cognizance of the offence and starts
C with a non-obstante clause. It provides that 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 and such complaint is made within one month of
  the date on which the cause of action arises under clause
D (c) of the proviso to Section 138. In terms of sub-section
  (c) to Section 142, no court inferior to that of a
  Metropolitan Magistrate or a Judicial Magistrate of the first
  class is competent to try any offence punishable under
  Section 138. [Para 6) [201-C-E]
E
       1.3 A conjoint reading of Sections 138 and 142 makes
  it abundantly clear that a complaint under Section 138
  can be filed only after the cause of action to do so
  accrues to the complainant in terms of clause (c) of the
F proviso to Section 138 which as noticed earlier happens
  only when the drawer of the cheque in question fails to
  make the payment of the cheque amount to the payee or
  the holder of the cheque within 15 days of the receipt of
  the notice required to be sent in terms of clause (b) to the
G proviso to Section 138. [Para 7) [201-F-G)
      1.4 A complaint filed in anticipation of the accrual of
  the cause of action under clause (c) of the proviso to
  Section 138 would be a premature complaint. The
  complainant would have no legal justification to file such
H a complaint for the cause of action to _do so would not
 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 195
                  ANR.
accrue to him till such time the drawer of the cheque fails    A
to pay the amount covered by the cheque within the
stipulated period of 15 days from the date of the receipt
of the notice. It follows that on the date such a premature
complaint is presented to the Magistrate the same can
and ought to be dismissed as premature and thus, not           B
maintainable. [Para 8] [201-G-H; 202-A-B]

     1.5 In the instant case, the Magistrate took
cognizance of the offence on 14th October, 2008 by
which time the stipulated period of 15 days had expired        C
but no payment towards the cheque amount was made
to the complainant even upto the date the cognizance
was taken. The commission of the offence was thus,
complete on the date cognizance was taken, but the
complaint on the basis whereof the cognizance was
taken remained premature. [Para 8] [202-B-C]                   D

      1.6 As regards the question whether the subsequent
development namely completion of the third requirement
for the commission of an offence under Section 138 could
be taken note of for purposes of cognizance under              E
Section 142 of the Act, the complaint filed by the appellant
was plainly premature. The fact that subsequent to the
filing of the complaint an offence under Section 138 had
been committed was no reason for the court to ignore the
fact that the complaint on the basis of which it was taking    F
cognizance of the offence was not a valid complaint. It
is said so because Section 142 of the Negotiable
Instruments Act forbids taking of cognizance of any
offence punishable under Section 138 except upon a
complaint, in writing, made by the payee or the holder of      G
the cheque in due course. Such a complaint in order to
be treated as a complaint within the contemplation of
Section 142 ought to be a valid complaint. This in turn
means that such a complaint must have been filed after
the complainant had the cause of action to do so under
clause (c) of the proviso to Section 138. A complaint, that    H
    196      SUPREME COURT REPORTS             [2012] 5 S.C.R.

A is, premature was no complaint in the eyes of law and no
  cognizance could be taken on the basis thereof. [Para 9]
  [202-D-H]

       1.7 The view taken in the two decisions by this Court
  - Narsingh Das Tapadia's case and Sarav Investment &
8
  Financial Consultancy Private Limited and Anr.'s case are
  at variance with each other. That apart, the decision in
  Narsingh Das Tapadia's case does not, correctly state
  the legal position and may require a fresh look by a larger
  Bench of this Court. The cleavage in the judicial opinion
C on the question does not appear to be confined to the
  judgments of this Court alone. Judicial opinion on the
  question is split even among the High Courts in the
  country. The conflict in the judicial pronouncements,
  therefore, needs to be resolved authoritatively. [Paras 10,
D 11, 12, 13 and 15] [203-A-G; 204-H; 205-B; 206-C]
         *Narsingh Das Tapadia v. Goverdhan Das Partani and
    Anr. (2000) 7 SCC 183: 2000 (3) Suppl. SCR 171; **Sarav
    Investment & Financial Consultancy Private Limited and Anr.
E   v. Llyod Register of Shipping Indian Office Staff Provident
    Fund and Anr. (2007) 14 SCC 753: 2007 (10 ) SCR 1110;
    Sandip Guha v. Saktipada Ghosh 2008 (3) CHN 214;
    Niranjan Sahoo v. Utkal Sanitary, BBSR, (Crl. Misc. Case
    No. 889 of 1996, decided on 13th February, 1998); Rakesh
F   Nemkumar Porwal v. Narayan Dhondu Joglekar and Anr.
    1994 (3) Born CR 355; Ashok Verma v. Ritesh Agro Pvt. Ltd.
    1995 (1) Bank CLR 103; N. Venkata Sivaram Prasad v.
    Rajeswari Constructions 1996 Cri.L.J. 3409 (A.P.); Smt. Hem
    Lata Gupta v. State of UP and Anr. 2002 Cri.L.J. 1522 (All);
G   Ganga Ram Singh v. State of UP. & Ors. 2005 Cri.L.J. 3681
    (All); Yun us Khan v. Mazhar Khan 2004 (1) GLT 652;
    Mahendra Agarwal v. Gopi Ram Mahajan (RLW 2003 (1) Raj
    673); Zenith Fashions Makers (P) Ltd. v. Ultimate Fashion
    Makers Ltd. and Anr. 121 (2005) DLT 297); Bapulal v.
    Krapachand Jain 2004 Cri.L.J. 1140; Rattan Chand v.
H   Kanwar Ram Kripal and Anr. 2010 Cri.L.J. 706; I. S.P.
 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 197
                  ANR.
Solutions India (P) Ltd. and Ors. v. Kuppuraj 2006 Cri.L.J.     A
3711; Harpreet Hosiery Rehari v. Nitu Mahajan 2000 Cri.L.J.
3625; S. Janak Singh v. Pritpal Singh 2007 (2) J.K. 91; Ashok
Hegde v. Jathin Attawan 1997 Cri.L.J. 3691; Arun Hegde and
Anr. v. M.J. Shetty ILR 2001 Kar 3295 - referred to.
                                                                B
     1.8 The second question formulated may arise only
in case the answer to the first question is in the negative.
If no cognizance could be taken on the basis of a
complaint filed prematurely, the question would be
whether such a complaint could be presented again after         C
the expiry of 15 days and beyond the period of one month
under the clause (b) of Section 142 of the Act. Whether
or not the complainant can in a situation like the one in
the case at hand invoke the proviso to clause (b) and
whether or not this Court can and ought to invoke its
power under Section 142 to permit the complainant to file       D
a complaint even after the expiry of period of one month
stipulated under Section 142 are incidental questions that
may fall for determination while answering question no.2.
[Para 16] [206-D-F]
                                                                E
    1.9 The two questions formulated are referred to a
three-Judge Bench of this Court. [Para 17] [206-G]

                    Case Law Reference:
  2000 ( 3 ) Suppl. SCR 171 Referred to           Para 10       F
  2007 (10) SCR 1110           Referred to        Para 11
  2008 (3) CHN 214             Referred to        Para 13
  1994 (3) Born CR 355         Referred to        Para 13
                                                                G
 1995 (1) Bank CLR 103         Referred to        Para 13
 1996 Cri.L.J. 3409 (A.P.)     Referred to        Para 13
 2002 Cri.L.J. 1522 (All)      Re.ferred to       Para 14
                                                                H
    198       SUPREME COURT REPORTS               [2012] 5 S.C.R.


A    2005 Cri.L.J. 3681 (All)      Referred to          Para 14

     2004 (1) GLT 652              Referred to          Para 14

     RLW 2003 (1) Raj 673          Referred to          Para 14

     121 (2005) DLT 297            Referred to          Para 14
B
     2004 Cri.L.J. 1140            Referred to          Para 14

     2010 Cri.L.J. 706             Referred to          Para 14

     2006 Cri.L.J. 3711             Referred to         Para 14
c
      2000 Cri.L.J. 3625            Referred to         Para 15

      2007 (2) J.K. 91              Referred to         Para 15

      1997 Cri.L.J. 3691            Referred to         Para 15
D     ILR 2001 Kar 3295             Referred to         Para 15

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 605 of 2012.

      From the Judgment & Order dated 21.05.2010 of the High
E Court of Allahabad in Criminal Miscellaneous Application No.
  773 of 2009.

        Shakil Ahmed, Syed Mohd. Moonis Abbas for the
    Appellant.
F
        JN Dubey, Anurag Dubey, Anu Sawhney, Meenesh Dubey,
    S.R. Setia for the Respondents.

          The Judgment of the Court was delivered

G                             JUDGMENT

          1. Leave granted.

       2. This appeal assails an order passed by the High Court
  whereby it has allowed a petition under Section 482 of the
H Cr.P.C. and quashed the order passed by the Magistrate taking
  YOGENDRA PRATAP SINGH v. SAVITRI PANDEY.& 199
                   ANR.
 cognizance of an offence punishable under Section 138 of The      A
 Negotiable Instruments Act, 1881. The following two questions
 arise for consideration:

     (i) Can cognizance of an offence punishable under Section
     138 of the Negotiable Instruments Act 1881 be taken on
                                                                   B
     the basis of a complaint filed before the expiry of the
     period of 15 days stipulated in the notice required to be
     served upon the drawer of the cheque in terms of Section
     138 (c) of the Act aforementioned? And,

     (ii) If answer to question No.1 is in the negative, can the   C
     complainant be permitted to present the complaint again
     notwithstanding the fact that the period of one month
     stipulated under Section 142 (b) for the filing of such a
     complaint has expired?
                                                                   D
     3. The questions arise in the following factual backdrop:

       The appellant filed a complaint under Section 138 of the
  Negotiable Instruments Act against respondent No.1 Smt.
  Savitri Pandey in the Court of Additional Civil Judge (J.D.)/
  Magistrate, Sonbhadra in the State of Uttar Pradesh. The         E
  respondent's case was that four cheques issued by the
  accused-respondent in his favour were dishonoured, when
  presented for encashment. A notice calling upon the
  respondent-drawer of the cheque to pay the amount covered
  by the cheques was issued and duly served upon the               F
  respondent as required under Section 138 (c) of The
  Negotiable Instruments Act, 1881. No payment was, however,
· made by the accused till 7th October, 2008 when a complaint
  under Section 138 of the Act aforementioned was filed before
 the Magistrate. Significantly enough the notice in question       G
 having been served on 23rd September, 2008, the complaint
 presented on 7th October, 2008 was filed before expiry of the
 stipulated period of 15 days. The Magistrate all the same took
 cognizance of the offence on 14th October, 2008 and issued
 summons to the accused, who then assailed the said order in       H
    200       SUPREME COURT REPORTS                [2012] 5 S.C.R.


A a petition under Section 482 of the Cr.P.C. before the High
  Court of Judicature at Allahabad. The High court took the view
  that since the complaint had been filed within 15 days of the
  service of the notice the same was clearly premature and the
  order passed by the Magistrate taking cognizance of the
B offence on the basis of such a complaint is legally bad. The High
  Court accordingly quashed the complaint and the entire
  proceedings relating thereto in terms of its order impugned in
  the present appeal.

       4. We have heard learned counsel for the parties at some
C length. Section 138 of the Negotiable Instrument Act, inter alia,
  provides:

          "where any cheque drawn by a person on an account
          maintained by him with a banker for payment of any
D         amount of money to another person from out of that account
          for the discharge, in whole or in part, of any debt or other
          liability, is returned by the bank unpaid, either because of
          the amount of money standing to the credit of that account
          is insufficient to honour the cheque or that it exceeds the
E         amount arranged to be paid from that account by an
          agreement made with that bank, such person shall be
          deemed to have committed an offence and shall without
          prejudice to any other provisions of this Act, be punished
          with imprisonment for a term which may extend to two year,
F         or with fine which may extend to twice the amount of the
          cheque, or with both."

       5. Proviso to Section 138, however, is all important and
  stipulates three distinct conditions precedent, which must be
  satisfied before the dishonour of a cheque can constitute an
G offence and become punishable. The first condition is that the
  cheque ought to have been presented to the bank within a
  period of six months from the date on which it is drawn or within
  the period of its validity, whichever is earlier. The second
  condition is that the payee or the holder in due course of the
H cheque, as the case may be, ought to make a demand for the
 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 201
                  ANR.
payment of the said amount of money by giving a notice in             A
writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return
of the cheque as unpaid. The third condition is that the drawer
of such a cheque should have failed to make payment of the
said amount of money to the payee or as the case may be, to           B
the holder in due course of the cheque within fifteen days of
the receipt of the said notice. It is only upon the satisfaction of
all the three conditions mentioned above and enumerated under
the proviso to Section 138 as clauses (a), (b) and (c) thereof
that an offence under Section 138 can be said to have been            c
committed by the person issuing the cheque.
      6. Section 142 of the Negotiable Instruments Act governs
taking of cognizance of the offence and starts with a non-
obstante clause. It provides that no court shall take cognizance
of any offence punishable under Section 138 except upon a             o
complaint, in writing, made by the payee or, as the case may
be, the holder in due course and 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. In terms of sub-section
(c) to Section 142, no court inferior to that of a Metropolitan       E
Magistrate or a Judicial Magistrate of the first class is
competent to try any offence punishable under Section 138.
      7. A conjoint reading of Sections 138 and 142 makes it
abundantly clear that a complaint under Section 138 can be filed
only after the cause of action to do so accrues to the                F
complainant in terms of clause (c) of the proviso to Section 138
which as noticed earlier happens only when the drawer of the
cheque in question fails to make the payment of the cheque
amount to the payee or the holder of the cheque within 15 days
of the receipt of the notice required to be sent in terms of clause   G
(b) to the proviso to Section 138.
      8. The upshot of the above discussion is that a complaint
filed in anticipation of the accrual of the cause of action under
clause (c) of the proviso to Section 138 would be a premature
complaint. The complainant will have no legal justification to file   H
    202      SUPREME COURT REPORTS                 [2012) 5 S.C.R.


A such a complaint for the cause of action to do so would not
  accrue to him till such time the drawer of the cheque fails to
  pay the amount covered by the cheque within the stipulated
  period of 15 days from the date of the receipt of the notice. It
  follows that on the date such a premature complaint is
B presented to the Magistrate the same can and ought to be
  dismissed as premature and hence not maintainable. That is,
  however, not what happened in the case at hand. In the present
  case, the Magistrate took cognizance of the offence on 14th
  October, 2008 by which time the stipulated period of 15 days
c had expired but no payment towards the cheque amount was
  made to the complainant even upto the date the cognizance
  was taken. The commission of the offence was thus complete
  on the date cognizance was taken, but the complaint on the
  basis whereof the cognizance was taken remained premature.
o       9. The question in the above backdrop is whether the
  subsequent development namely completion of the third
  requirement for the commission of an offe~ce under Section
  138 could be taken note of for purposes of cognizance under
  Section 142 of the Act. The complaint filedt>r the appellant was
E in our view plainly premature. The fact that subsequent to the
  filing of the complaint an offence under Section 138 had been
  committed was no reason for the court to ignore the fact that
  the complaint on the basis of which it was taking cognizance
  of the offence was not a valid complaint. We say so because
F Section 142 of the Negotiable Instruments Act forbids taking
  of cognizance of any offence punishable under Section 138
  except upon a complaint, in writing, made by the payee or the
  holder of the cheque in due course. Such a complaint in order
  to be treated as a complaint within the contemplation of Section
  142 ought to be a valid complaint. This in turn means that such
G a complaint must h~ve been filed after the complainant had the
  cause of action to do so under clause (c) of the proviso to
  Section 138. A complaint, that is, premature was no complaint
  in the eyes of law and no cognizance could be taken on the
  basis thereof.
H
YOGENDRA PRATAP SINGH v. SAVITRI PANDEY &                     203
                 ANR.
      10. Having said that, we must refer to two decisions of this   A
Court that were cited at the Bar by learned counsel for the
parties in support of their respective submissions. In Narsingh
Das Tapadia v. Goverdhan Das Partani and Anr. (2000) 7
SCC 183, a similar question arose before a two-Judge Bench
of this Court. That was also a case where on the date the            B
complaint was filed the complainant had no cause of action but
by the time cognizance of the offence was taken by the
Magistrate, the stipulated period of 15 days had expired and
the commission of the offence was complete. This Court drew
a distinction between "taking cognizance of an offence" and "the     c
filing of a complaint by the complainant". This Court held that
while there was a bar to the taking of a cognizance by the
Magistrate, there was no bar to the filing of a complaint and
that a complaint filed even before the expiry of the period of
15 days could be made a basis for taking cognizance of the
                                                                     0
offence provided cognizance was taken after the expiry of the
said period. This Court observed:

    "Mere presentation of the complaint in the court cannot be
    held to mean that its cognizance had been taken by the
    Magistrate. If the complaint is found to be premature, it can    E
    await maturity or be returned to the complainant for filing
    later and its mere presentation at an earlier date need not
    necessarily render the complaint liable to be dismissed or
    confer any right upon the accused to absolve himself from
    the criminal liability for the offence committed."               F

     11. The other decision pressed into service before us was
also delivered by a two Judge Bench of this Court in Sarav
Investment & Financial Consultancy Private Limited and
Another v. Llyod Register of Shipping Indian Office Staff G
Provident Fund and Anr. (2007) 14 SCC 753. There this Court
held that Section 138 of the Negotiable Instruments Act contains
a penal provision and creates a vicarious liability. Even the
burden of proof to some extent is on the accused. Having regard
to the purport of the said provision and the severe penalty          H
    204        SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A sanctioned by it, the same warrants a strict construction. The
  Court further held that service of a notice in terms of Section
  138 proviso (b) of the Act is a part of the cause of action for
  lodging the complaint under Section 138 and that service of a
  notice under clause (b) of the proviso to Section 138 was an
B essential requirement to be complied with before a complaint
  could be filed.

          The Court observed:

          "16. Section 138 of the Act contains a penal provision. It
c         is a special statute. It creates a vicarious liability. Even the
          burden of proof to some extent is on the accused. Having
          regard to the purport of the said provision as also in view
          of the fact that it provides for a severe penalty, the
          provision warrants a strict construction. Proviso appended
D         to Section 138 contains a non obstante clause. It provides
          that nothing contained in the main provision shall apply
          unless the requirements prescribed therein are complied
          with. Service of notice is one of the statutory requirements
          for initiation of a criminal proceeding. Such notice is
E         required to be given within 30 days of the receipt of the
          information by the complainant from the bank regarding the
          cheque as unpaid. Clause (c) provides that the holder of
          the cheque must be given an opportunity to pay the amount
          in question within 15 days of the receipt of the said notice.
F         Complaint petition, thus, can be filed for commission of an
          offence by a drawee of a cheque only 15 days after
          service of the notice. What are the requirements of service
          of a notice is no longer res integra in view of the recent
          decision of this Court in C.C. Alavi Haji v. Palapetty
          Muhammed"
G
       12. It follows that a complaint filed before the expiry of the
  stipulated period of 15 days was not a valid complaint for
  purposes of Section 142 of the Act. To that extent, therefore,
  the view taken in the two decisions referred to above are at
H variance with each other. That apart, the decision in Narsingh
 YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & 205
                  ANR.
Das Tapadia (supra) does not, in our opinion, correctly state         A
the legal position and may require a fresh look by a larger
Bench of this Court. The cleavage in the judicial opinion on the
question does not appear to be confined to the judgments of
this Court alone.
                                                                      B
     13. Judicial opinion on the question is split even among
the High Courts in the country. For instance, the High Court of
Calcutta in Sandip Guha v. Saktipada Ghosh 2008 (3) CHN
214, High Court of Orissa in Niranjan Sahoo v. Utkal Sanitary,
BBSR, [Crl. Misc. Case No.889 of 1996, decided on 13th
February, 1998], High Court of Bombay in Rakesh Nemkumar              C
Porwal v. Narayan Dhondu Joglekar and Anr. 1994 (3) Born
CR 355, High Court of Punjab and Haryana in Ashok Verma
v. Ritesh Agro Pvt. Ltd. 1995 (1) Bank CLR 103 and the High
Court of Andhra Pradesh in N. Venkata Sivaram Prasad v.
Rajeswari Constructions 1996 Cri.L.J. 3409 (A.P.) have taken          D
the view that a complaint filed within 15 days of the notice period
was premature and hence liable to be quashed.

     14. The High Court of Allahabad on the other hand has
taken a contrary view in Smt. Hem Lata Gupta v. State of U.P          E
& Anr. 2002 Cri.L.J. 1522 (All) and held that cognizance taken
on the basis of a complaint filed within 15 days of the notice
period was perfectly in order if such cognizance was taken after
the expiry of the said period. To the same effect are the
decisions of High Court of Allahabad in Ganga Ram Singh v.            F
State of U.P. & Ors. 2005 Cri.L.J. 3681 (All), High Court of
Gauhati in Yunus Khan v. Mazhar Khan, [2004 (1) GLT 652],
High Court of Rajasthan (Jaipur Bench) in Mahendra Agarwal
v. Gopi Ram Mahajan, [RLW 2003 (1) Raj 673], High Court of
Delhi in Zenith Fashions Makers (P) Ltd. v. Ultimate Fashion          G
Makers Ltd. and Anr., [121 (2005) DLT 297], High Court of
Madhya Pradesh, Indore Bench in Bapulal v. Krapachand
Jain, 2004 Cri.L.J. 1140, High Court of Himachal Pradesh in
Rattan Chand v. Kanwar Ram Kripal and Anr. 2010 Cri.L.J.
706 and High Court of Madras in I.SP. Solutions India (P) Ltd.        H
and Ors. v. Kuppuraj, 2006 Cri.L.J. 3711:
    206       SUPREME COURT REPORTS               [2012] 5 S.C.R.


A      15. It is noteworthy that the same High Court has in certain
  cases taken different views on the subject. For instance the
  High Court of Jammu and Kashmir has in Harpreet Hosiery
  Rehari v. Nitu Mahajan, 2000 Cri.L.J. 3625 held that dismissal
  of complaint on ground of that the same is premature is valid;
B while in S. Janak Singh v. Pritpal Singh, 2007 (2) J.K. 91, it
  has held that cognizance taken on a complaint filed b~fore expiry
  of 15 days of the notice, after the expiry of the saia period is
  permissible. A similar difference of opinion can also be seen
  in two decisions of the Karnataka High Court in Asf1ok Hegde
c v. Jathin Attawan, 1997 Cri.L.J. 3691 and Arun Hegde and Anr.
  v. M.J. Sheffy, ILR 2001 Kar 3295. The conflict in the judicial
  pronouncements referred to above, therefore, needs to be
  resolved authoritatively.                           ·

        16. The second question formulated earlier may arise only
D in case the answer to the first question is in the negative. If no
  cognizance could be taken on the basis of a complaint filed
  prematurely, the question would be whether such a complaint
  could be presented again after the expiry of 15 days and
  beyond the period of one month under the clause (b) of Section
E 142 of the Act. Whether or not the complainant can in a situation
  like the one in the case at hand invoke the proviso to clause
  (b) and whether or not this Court can and ought to invoke its
  power under Section 142 to permit the complainant to file a
  complaint even after the expiry of period of one month stipulated
F under Section 142 are incidental questions that may fall for
  determination while answering question no.2.

      17. In the light of the above, we deem it fit to refer the two
  questions formulated in the beginning of the judgment to a three-
G Judge Bench of this Court. The Registry shall place the file
  before the Chief Justice for constitution of an appropriate
  Bench.

    N.J.                          Matter referred to larger bench.

H