Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. The offence under Section 138 of THE ACT is capable of being committed only by the drawer of the cheque. The logic of the High Court that since the offence is already taken cognizance of, there · · is no need to take cognizance of the offence against DAKSHIN is flawed. Section 141 stipulates the liability for the offence punishable under Section 138 ofTHE.{\.CTwhen the person committing such an offence happen;c; .. to be a company- in other words when the drawer of the cheque happen to be a company. Relevant portion of Section 141 reads as follows:- c "Section 141. Offences by companies.- (]) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:"
21. This Court in Aneeta Hada, had an occasion to examine the question "whether an authorised signatory of a company would be I iab le for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the Act") without the company being arraigned as an accused" and held as follows:- "59. In view ofouraforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. … " Yet the High Court reached a conclusion that the revision filed by the petitioner is not maintainable because DAKSHIN did not choose to challenge the trial court's order. The High Court failed to appreciate that the liability of the G appellant (if any in the context of the facts of the present case) is only statutory because of his· legal status as the DIRECTOR of DAKSHIN. Every person signing a cheque on behalf of a company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorised to sign the cheque on behalf of the company/drawer of the cheque. lfDAKSHIN/drawer of the cheque H is sought to be summoned for being tried for an offence under Section N. HARIHARA KRISHNAN v. J. THOMAS [CHELAMESWAR, J.] 138 of THE ACT beyond the period of limitation prescribed under THE ACT, the appellant cannot be told in view of the law declared by this Court in Aneeta Hada that he can make no grievance of that fact on the ground that OAK SHIN did 'not make any grievance of such summoning. It is always open to DAKSHIN to raise the defense that the initiation.of prosecution against it is barred by limitation. DAKSHIN need not necessarily challenge the summoning order. It can raise such a defense in the course of trial. Coming to the view of the High Court that only the offence is taken cognizance of and there is no need to take cognizance of an offence accused-wise is an erroneous view in the context of a prosecution under THE ACT. Most probably the High Court recorded such conclusion (though not expressly stated) on the basis of the judgment of this Court in Raglmbans Dubey v. State of Bi/iar, AIR 1967 SC 1167, where it was stated: "Para 9 …. In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the D offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. . .. " Such a statement of law was made by this Court in the background of the scheme of the CrPC.
22. The CrPC is an enactment which is designed to regulate the procedures governing the investigation of crimes in order to get the perpetrators of the crime punished. A crime is an actor omission prohibited · by law attracting certain legal consequences like imprisonment, fine etc. Obviously, acts or omissions constituting offences/crimes are capable of being committed only by persons either natural or juridical. The CrPC imposes a duty on the investigating agencies to gather evidence necessary to establish the occurrence of a crime and to trace out the perpetrators of the crime in order to get them punished. Punishment can be inflicted only by a competent Court but not by the investigating agency, Courts are authorised to inflict punishment if only they are satisfied that the evidence gathered by the investigating agency is sufficient to establish that (I) a crime had been committed; and (2) the H [2-017) 9 S.C.R. A persons charged with the offence (accused) and brought before the Court by the investigating agency for trial are the perpetrators of the crime. Under the Scheme of the CrPC, any investigating agency (normally the police) is bound to investigate by following the procedure B prescribed therein once it receives either information regarding the commission of a cognizable offence or an order from a Magistrate to investigate into the allegation of the occurrence of a non-cognizable offence and submit a report under Section 173. Section l 73(2)(i)(d) inter alia stipulates that the report should contain a statement: c "Whether any offence appears to have been committed and if so by whom?" The contlusions reached by the police after investigation into the above two questions are required to be scrutinized by a competent Court. It is only after the Court is satisfied that the evidence collected by the D investigating agency is sufficient in law to punish the accused, such accused can be punished. Taking cognizance of an offence by the Court is one of the initial steps in the process. Thereafter, the investigating agency is required to collect evidence (investigate) and place the same before the Court under Section 173 CrPC.
23. The scheme of the prosecution in punishing under Section 138 ofTHEACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting F each of the ingredients of the offence under Section 138. Those ingredients are: (I) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or G within the period of its validity whichever is earlier; ( 4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section N. HARIHARA KRISHNAN v. J. THOMAS [CHELAMESWAR, J.) 138 that each one of the ingredients flows from a document. which A evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section .138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer ofthe cheque to prove that he had in fact made the payment pursuant to the demand.
24. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily C required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required ·to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide ''cause of action for· prosecution". Therefore, in the context of a prosecution under Section I 3 8, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section l 3 8, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused, The offence under Section 138 is person specific. Therefore, the Parliament declared under Section l 42 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. [2017) 9 S.C.R.
25. The question whether the respondent had sufficient cause for not filing the complaint against DAKSHIN within the period prescribed under THE ACT is not examined by either of the courts below. As rightly pointed out, the application, which is the subject matter of the instant appeal purportedly filed invoking Section 319 CrPC, .is only a B device by which the respondent seeks to initiate prosecution against DAKSHIN beyond the period of limitation stipulated under the Act.
26. No dou.bt S~ction 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of . the trial, the respondent realized that the cheque in question was drawn C on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account ofDAKSHIN. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to DAKSHIN. The fact is recorded by the High Court. The relevant portion is already extracted in para 16.
27. The judgment under appeal is contrary to the language of THE ACT as expounded by this Court in Aneeta Hada (supra) and, therefore, cannot be sustained. The judgment is, accordingly, set aside. The appeal is allowed. In the circumstances, the costs is quantified at Rs. 1,00,000/- (Rupees One Lakh Only). Kalpana K. Tripathy Appeal allowed.