New Delhi, Apr 22: The Supreme Court has referred to a larger bench the question whether a person can be tried for a cheque bounce, even before the expiry of the 15 days notice period issued by a complainant.
 A bench of justices T S Thakur and Gyan Sudha Misra framed two questions for consideration by a larger bench following conflicting judgements by the Supreme Court and a larger number of high courts in the country.
 Firstly, can cognisance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 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 drawer of the cheque in terms of Section 138 (c) of the Act aforementioned?
 And secondly if answer to the first question is in the negative, can the 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?
 While some judgements had stated that the 15 days period could be waived off, several other rulings had said that the time period was mandatory an no cognisance could be taken before it expiry.
 The apex court passed the direction while dealing with an appeal filed by Yogendra Pratap Singh challenging an Allahabad High Court judgement quashing the cognisance taken by a magistrate of the complaint lodged by him against Savitri Pandey.
 Singh had filed a complaint under Section 138 of the Negotiable Instruments Act against respondent Savitri Pandey in the court of additional civil judge, magistrate, Sonbhadra, Uttar Pradesh after four cheques allegedly issued by the woman bounced.
 As required under Section 138 (c), Negotiable Instruments Act, 1881, he served her with a notice calling upon her to pay the amount.
 No payment was, however, made by the accused till October7, 2008 when a complaint under Section 138 of the Act aforementioned was filed before the magistrate.
 Significantly enough, the notice in question having been served on September 23, 2008, the complaint presented on October 7, 2008 was filed before expiry of the stipulated period of 15 days.
 The magistrate took cognisance of the offence on October 14, 2008 and issued summons to the accused, but the same was quashed by the high court following which the complainant appealed in the apex court.
 Interpreting the Act, the apex court said three distinct conditions precedent, must be satisfied 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 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 30 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 to the payee or as the case may be, to the holder in due course of the cheque within 15 days of the receipt of the said notice.
 But since there has been conflicting verdicts on the issue, the apex court said it would be appropriate if a larger bench examined the issue as to whether cognisance can be take by a magistrate even before conclusion of the 15 days notice period. 

Lastupdate on : Sun, 22 Apr 2012 21:30:00 Makkah time
Lastupdate on : Sun, 22 Apr 2012 18:30:00 GMT
Lastupdate on : Mon, 23 Apr 2012 00:00:00 IST