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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.     1837        OF     2012   (Arising out of S.L.P. (Crl.) No. 8255 of 2010)

Indra Kumar Patodia & Anr.                       .... Appellant(s)

Versus

Reliance Industries Ltd. and Ors..       .... Respondent(s)

WITH

CRIMINAL     APPEAL     No.      1838      OF     2012   (Arising out of S.L.P. (Crl.) No. 9537 of 2010)

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) Leave granted.

2) These appeals are filed against the common final  

judgment and order dated 17/18.03.2010 passed by the High  

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Court of Judicature at Bombay in Criminal Appeal Nos. 287  

and 288 of 2009 whereby the Division Bench held that the  

complaint under Section 138 of the Negotiable Instruments  

Act, 1881 (in short “the Act”) without signature is  

maintainable when such complaint was subsequently verified  

by the complainant.   

3) Brief facts:

(a) Indra Kumar Patodia and Mahendra Kumar Patodia – the  

appellants herein are accused in Criminal Complaint being CC  

No. 1866/SS of 2007 (1866/MISC/1998) filed before the 16th  

Court of Metropolitan Magistrate, Ballard Estate, Bombay, for  

the offence punishable under Section 138 read with Sections  

141 and 142 of the Act.    Respondent No.3 herein is a  

Company duly registered under the Companies Act, 1956,  

presently under liquidation and official liquidator has been  

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appointed by the High Court, which has alleged to have issued  

the cheques to respondent No.1.   

(b) Respondent No.1 is the complainant and the  

manufacturers of Partially Oriented Yarn (POY) and other  

textile goods.  From time to time, Respondent No. 3 used to  

place orders for the supply of POY to Respondent No. 1 and  

had issued 57 cheques between 02.12.1997 to 09.03.1998 for  

the payment of the same.   

(c) The aforesaid cheques were deposited by the complainant  

on 05.04.1998 and were returned by the Bank on 06.04.1998  

with the remark “exceeds arrangement”.  Pursuant to the  

same, Respondent No.1 issued a notice dated 16.04.1998 to  

the appellants and demanded the aforesaid amount for which  

they replied that they have not received any statement of  

accounts maintained by the complainant regarding the  

transactions with the accused.  In addition to the same,  

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Respondent No.3, vide letter dated 29.05.1998, made various  

claims for the rate difference, discounts etc., in respect of the  

transactions, however, Respondent No.1 filed a complaint on  

03.06.1998 being Complaint No. 1866/SS of 2007  

(1866/MISC/1998) under Section 138 read with Sections 141  

and 142 of the Act. On 30.07.1998, the Metropolitan  

Magistrate recorded the verification statement and issued  

summons against the appellants and respondent No.3 herein.

(d) The appellants preferred an application being C.C. No.  

1332/9/1999 before the Metropolitan Magistrate, 33rd Court,  

Ballard Pier, Mumbai for recalling the process issued against  

them. By order dated 28.08.2003, the Metropolitan Magistrate,  

dismissed the said application.

(e) Challenging the said order, the appellants and  

respondent No.3 herein filed an application in the Court of  

Sessions for Greater Bombay at Bombay bearing Criminal  

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Revision Application No. 749 of 2003.  By Order dated  

08.10.2004, the Sessions Judge dismissed the said application  

as not maintainable.

(f) By order dated 26.11.2008, the Metropolitan Magistrate  

dismissed the complaint and acquitted the accused persons.   

(g) Challenging the acquittal of the accused persons,  

respondent No.1 herein-the complainant, filed appeals being  

Criminal Appeal Nos. 287 and 288 of 2009 before the learned  

single Judge of the High Court.  The learned single Judge, by  

order dated 09.07.2009, referred two points for consideration  

by the larger Bench, viz.,  (1) In the matter of complaint for the  

offence punishable under Section 138 of the 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?; and (2) If answer to  

point No.1 is negative then whether it is a mere irregularity  

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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.  

(h) By impugned common judgment dated 17/18.03.2010,  

the Division Bench of the High Court, disposed of the matter  

by answering point No.1 in the affirmative holding that the  

complaint under Section 138 of the Act is maintainable and  

when such complaint is subsequently verified by the  

complainant and the process is issued by the Magistrate after  

verification, it cannot be said that the said complaint is “non-

entia” and the prosecution of such complaint is maintainable.  

Further, it was held that since the answer to point No.1 was in  

affirmative, it was not necessary to decide point No.2 and  

directed to place the appeals for deciding the same on merits.

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(i) Aggrieved by the said decision, the appellants have filed  

the above appeals by way of special leave before this Court.

4) Heard Mr. Bhagwati Prasad, learned senior counsel for  

the appellants and Mr. Uday U. Lalit, learned senior counsel  

for respondent No.1, Ms. Asha Gopalan Nair, learned counsel  

for respondent No.2 and Ms. Sangeeta Kumar, learned counsel  

for respondent No.3.

5) Mr. Bhagwati Prasad, learned senior counsel for the  

appellants after taking us through the relevant provisions of  

the Negotiable Instrument Act, 1881, the Code of Criminal  

Procedure, 1973 (in short ‘the Code’) and the order of the  

learned single Judge as well as the reference answered by the  

Division Bench raised the following contentions:

i) the complaint under Section 141 in respect of dishonour  

of cheque under Section 138 of the Act without signature of  

the complainant is not maintainable;

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ii) there is no provision in the Act regarding verification.  

Even otherwise, the verification was signed by the complainant  

after expiry of the limitation period, hence, the impugned  

complaint is liable to be rejected; and

iii) inasmuch as the Act is a special Act, it must prevail over  

procedures provided in the Code.

On the other hand, Mr. Lalit, learned senior counsel for the  

contesting first respondent-the complainant contended that in  

the light of the language used in Section 2(d) read with various  

provisions of the Code and Section 142 of the Act, the  

complaint, as filed and duly verified before the Magistrate and  

putting signature therein, satisfies all the requirements.  He  

further submitted that the conclusion of the Division Bench  

upholding the complaint and the issuance of summons for  

appearance of the accused are valid and prayed for dismissal  

of the above appeals.  

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6) We have carefully considered the rival submissions and  

perused all the relevant materials.  

7) From the rival contentions, the only question for  

consideration before this Court is that whether the complaint  

without signature of the complainant under Section 138 of the  

Act is maintainable when such complaint is verified by the  

complainant and the process is issued by the Magistrate after  

verification.   

8) The word “complaint” has been defined in Section 2(d) of  

the Code which reads thus:

“2 (d) “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.”

Keeping the above definition in mind, let us see the scheme of  

the statute and the legislative intent in bringing the Act.  

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9) The Act was amended by Banking, Public Financial  

Institutions and Negotiable Instruments Laws (Amendment  

Act) 1988 wherein 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 in order to encourage the culture  

of use of cheques and enhancing the credibility of the  

instrument.  The insertion of the new Chapter and  

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 nominees director from prosecution under the Act.  For  

our purpose, Section 142 of the Act is relevant which reads  

thus:  

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“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:

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 under section 138.”

As pointed out, the controversy in our case, concentrates on  

construction of Section 142(a) of the Act and in particular  

phrase “a complaint in writing” employed therein.  It provides  

that notwithstanding anything contained in the Code, no  

Court shall take cognizance of any offence punishable under  

Section 138 of the Act except upon a “complaint in writing”  

made by the payee or as the case may be the holder in due  11

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course of the cheque.  The important question in the instant  

case is what is meant by ‘complaint in writing’.  Whether  

complaint should be in writing simpliciter or complaint being  

in writing requires signature below such writing.  

10) The object and scope of Sections 138 and 142 of the Act  

has been considered by this Court in Pankajbhai Nagjibhai  

Patel vs. State of Gujarat and Another, (2001) 2 SCC 595.  

In that case, Judicial Magistrate of the First Class, after  

convicting an accused for an offence under Section 138 of the  

Act sentenced him to imprisonment for six months along with  

a fine of Rs.83,000/-  The conviction and sentence were  

confirmed by the Sessions Judge in appeal and the revision  

filed by the convicted person was dismissed by the High Court.  

When the SLP was moved, the counsel confined his contention  

to the question whether a Judicial Magistrate of the First  

Class could have imposed sentence of fine beyond Rs. 5,000/-  

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in view of the limitation contained in Section 29(2) of the Code.  

Learned counsel for the respondent contended the decision of  

this Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan,  

(1999) 7 SCC 510 to the effect that power of Judicial  

Magistrate of First Class is limited in the matter of imposing a  

sentence of fine of Rs. 5,000/- is not correct in view of the non  

obstante clause contained in Section 142 of the Act.  After  

hearing both the parties, this Court held that Section 138 of  

the Act provides punishment as imprisonment for a term  

which may extend to one year or fine which may extend to  

twice the amount of cheque or with both.  Section 29(2) of the  

Code contains limitation for a Magistrate of First Class in the  

matter of imposing fine as a sentence or as part of sentence.  

After quoting Section 29(2) of the Code as well as Section 142  

of the Act, this Court has concluded thus:

“6. It is clear that the aforesaid non obstante expression is  intended to operate only in respect of three aspects, and  

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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 under Section 138 is concerned no court shall  take cognizance except upon a complaint made by the payee  or the holder in due course of the cheque.

7. The second is this: Under the Code a complaint could be  made at any time subject to the provisions of Chapter  XXXVI. But so far as the offence under Section 138 of the NI  Act is concerned such complaint shall be made within one  month of the cause of action. The third is this: Under Article  511 of the First Schedule of the Code, if the offence is  punishable with imprisonment for less than 3 years or with  fine only under any enactment (other than the Indian Penal  Code) such offence can be tried by any Magistrate. Normally  Section 138 of the NI Act which is punishable with a  maximum sentence of imprisonment for one year would have  fallen within the scope of the said Article. But Section 142 of  the NI Act says that for the offence under Section 138, no  court inferior to that of a Metropolitan Magistrate or Judicial  Magistrate of the First Class shall try the said offence.

8. Thus, the non obstante limb provided in Section 142 of  the NI Act is not intended to expand the powers of a  Magistrate of the First Class beyond what is fixed in Chapter  III of the Code. Section 29, which falls within Chapter III of  the Code, contains a limit for a Magistrate of the First Class  in the matter of imposing a sentence as noticed above i.e. if  the sentence is imprisonment it shall not exceed 3 years and  if the sentence is fine (even if it is part of the sentence) it  shall not exceed Rs 5000.”

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11) It is also relevant to refer a decision of this Court in  

M.M.T.C. Ltd. and Another vs. Medchl Chemicals and  

Pharma (P) Ltd. and Another, (2002) 1 SCC 234.  The  

question in that decision was whether a complaint filed in the  

name and on behalf of the company by its employee without  

necessary authorization is maintainable.  After analyzing the  

relevant provisions and language used in Sections 138 and  

142(a) of the Act, this Court held that such complaint is  

maintainable and held that want of authorization can be  

rectified even at a subsequent stage.  This Court further  

clarified that the only eligibility criteria prescribed by Section  

142 is that the complaint must be by the payee or the holder  

in due course.  This Court held that this criteria is satisfied as  

the complaint is in the name and on behalf of the appellant-

Company.  It was further held that even presuming, that  

initially there was no authority, still the company can, at any  

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stage, rectify the defect.  It was further held that at a  

subsequent stage the company can send a person who is  

competent to represent the company and concluded that the  

complaint could thus not have been quashed on this ground.  

12) It is clear that the non obstante clause has to be given  

restricted meaning and when the section containing the said  

clause does not refer to any particular provisions which  

intends to over ride but refers to the provisions of the statute  

generally, it is not permissible to hold that it excludes the  

whole Act and stands all alone by itself.  In other words, there  

requires to be a determination as to which provisions answers  

the description and which does not.  While interpreting the  

non obstante clause, the Court is required to find out the  

extent to which the legislature intended to do so and the  

context in which the non obstante clause is used.  We have  

already referred to the definition of complaint as stated in  

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Section 2(d) of the Code which provides that the same needs to  

be in oral or in writing.  The non obstante clause, when it  

refers to the Code only excludes the oral part in such  

definition.   

13) According to us, the non obstante clause in Section  

142(a) is restricted to exclude two things only from the Code  

i.e. (a) exclusion of oral complaints and (b) exclusion of  

cognizance on complaint by anybody other than the payee or  

the holder in due course.   Section 190 of the Code provides  

that a Magistrate can take cognizance on a complaint which  

constitutes such an offence irrespective of who had made such  

complaint or on a police report or upon receiving information  

from any person other then a police officer or upon his own  

knowledge.  Non obstante clause, when it refers to the core,  

restricts the power of the Magistrate to take cognizance only  

on a complaint by a payee or the holder in due course and  

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excludes the rest of Section 190 of the Code.  In other words,  

none of the other provisions of the Code are excluded by the  

said non obstante clause, hence, the Magistrate is therefore  

required to follow the procedure under Section 200 of the Code  

once he has taken the complaint of the payee/holder in due  

course and record statement of the complainant and such  

other witnesses as present at the said date.  Here, the Code  

specifically provides that the same is required to be signed by  

the complainant as well as the witnesses making the  

statement.  Section 200 of the Code reads thus:

“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:

Provided that, when the complaint is made in writing,  the Magistrate need not examine the complainant and the  witnesses-

(a) if a public servant acting or purporting to act in the  discharge of his official duties or a Court has made the  complaint; or  

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(b) if the Magistrate makes over the case for inquiry or  trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case  to another Magistrate under section 192 after examining the  complainant and the witnesses, the latter Magistrate need  not re-examine them.”

Mere presentation of the complaint is only the first step and  

no action can be taken unless the process of verification is  

complete and, thereafter, the Magistrate has to consider the  

statement on oath, that is, the verification statement under  

Section 200 and the statement of any witness, and the  

Magistrate has to decide whether there is sufficient ground to  

proceed.  It is also relevant to note Section 203 of the Code  

which reads as follows:

“203. Dismissal of complaint.- If, after considering the  statements on oath (if any) of the complainant and of the  witnesses and the result of the inquiry or investigation (if  any) under section 202, the Magistrate is of opinion that  there is no sufficient ground for proceeding, he shall dismiss  the complaint, and in every such case he shall briefly record  his reasons for so doing.”

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It is also clear that a person could be called upon to answer a  

charge of false complaint/perjury only on such verification  

statement and not mere on the presentation of the complaint  

as the same is not on oath and, therefore, need to obtain the  

signature of the person.  Apart from the above section, the  

legislative intent becomes clear that “writing”  does not pre-

suppose that the same has to be signed.  Various sections in  

the Code when contrasted with Section 2(d) clarify that the  

legislature was clearly of the intent that a written complaint  

need not be signed.  For example, Sections 61, 70, 154, 164  

and 281 are reproduced below:

“61. Form of summons.   Every summons issued by a court under this Code shall be  in writing, in duplicate, signed by the presiding officer of  such court or by such other officer as the High Court may,  from time to time, by rule direct, and shall bear the seal of  the court.

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70. Form of warrant of arrest and duration.   (1) Every warrant of arrest issued by a court under this Code  shall be in writing, signed by the presiding officer of such  court and shall bear the sea] of the court.   (2) Every such warrant shall remain in force until it is  cancelled by the Court which issued it, or until it is  executed.

154. Information in cognizable cases.   (1) Every information relating to the commission of a  cognizable offence, if given orally to an officer in charge of a  police station, shall be reduced to writing by him or under  his direction, and be read over to the informant; and every  such information, whether given in writing or reduced to  writing as aforesaid, shall be signed by the person giving it,  and the substance thereof shall be entered in a book to be  kept by such officer in such form as the State Government  may prescribe in this behalf. …..

164. Recording of confessions and statements. Xxx xxxx (4) Any such confession shall be recorded in the manner  provided in section     281   for recording the examination of an  accused person and shall be signed by the person making  the confession; and the Magistrate shall make a  memorandum at the foot of such record to the following  effect-

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281. Record of examination of accused.   (1) Whenever the accused is examined by a Metropolitan  Magistrate, the Magistrate shall make a memorandum of the  substance of the examination of the accused in the language  of the court and such memorandum shall be signed by the  Magistrate and shall form part of the record…..”

A perusal of the above shows that the legislature has made it  

clear that wherever it required a written document to be  

signed, it should be mentioned specifically in the section itself,  

which is missing both from Section 2(d) as well as Section  

142.   

14) The General Clauses Act, 1897 too draws a distinction  

between writing and signature and defines them separately.  

Section 3(56) defines signature and Section 3(65) defines  

writing which reads thus:

“In this Act, and in all Central Acts and Regulations made  after the commencement of this Act, unless there is anything  repugnant in the subject or context,-   56. "Sign" with its grammatical variations and cognate  expressions, shall, with reference to a person who is unable  

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to write his name, include, "mark", with its grammatical  variation and cognate expressions,  

65. Expressions referring to "writing" shall be construed as  including references to printing, lithography, photography  and other modes of representing or reproducing words in a  visible form,”    

Writing as defined by General Clauses Act requires that the  

same is representation or reproduction of “words” in a visible  

form and does not require signature.  “Signature”  within the  

meaning of “writing”  would be adding words to the section  

which the legislature did not contemplate.     

15) In the case on hand, the complaint was presented in  

person on June 3, 1998 and on the direction by the  

Magistrate, the complaint was verified on July 30, 1998 and  

duly signed by the authorized officer of the Company-the  

complainant.  As rightly pointed out by the Division Bench, no  

prejudice has been caused to the accused for non-signing the  

complaint.  The statement made on oath and signed by the  

complainant safeguards the interest of the accused.  In view of  23

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the same, we hold that 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.  

16) It is the contention of Mr. Bhagwati Prasad, learned  

senior counsel for the appellant that the limitation period  

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expired on the date of verification and the complaint cannot be  

entertained.  In view of the above discussion, we are unable to  

accept the said contention.  

17) In Japani Sahoo vs. Chandra Sekhar Mohanty, (2007)  

7 SCC 394, in para 48, this Court held that “so far as the  

complainant is concerned, as soon as he files a complaint in a  

competent court of law, he has done everything which is  

required to be done by him at that stage.  Thereafter, it is for  

the Magistrate to consider the matter to apply his mind and to  

take an appropriate decision of taking cognizance, issuing  

process or any other action which the law contemplates”.  This  

Court further held that “the complainant has no control over  

those proceedings”.  Taking note of Sections 468 and 473 of  

the Code, in para 52, this Court held that “for the purpose of  

computing the period of limitation, the relevant date must be  

considered as the date of filing of the complaint or initiating  

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criminal proceedings and not the date of taking cognizance by  

a Magistrate or issuance of process by a Court”.   

18) In the light of the scheme of the Act and various  

provisions of the Code, we fully endorse the above view and  

hold that 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.  

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19) In the light of the above discussion, taking note of  

various provisions of the Act and the Code which we have  

adverted above, we hold that the complaint under Section 138  

of the Act without signature is maintainable when such  

complaint is verified by the complainant and the process is  

issued by the Magistrate after due verification.  The  

prosecution of such complaint is maintainable and we agree  

with the conclusion arrived at by the Division Bench of the  

High Court.  Consequently, both the appeals fail and are  

dismissed.       

………….…………………………J.                      (P. SATHASIVAM)                                  

       ………….…………………………J.                      (RANJAN GOGOI)                                   

NEW DELHI; NOVEMBER 22, 2012.

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