Section 142(1)(a) of the Negotiable Instruments Act lays down that, “no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee…”.
What if the complaint for the cheque bouncing case under Section 138 of the N.I. Act is given in writing, but it does not contain the signature of the complainant? Is such complaint maintainable?
This question arose before the Supreme Court in the case of Indra Kumar Patodia v. Reliance Industries Ltd., (2012) 13 SCC 1.
So, the important question was – what is meant by “complaint in writing” – the expression used in Section 142(1)(a)? Whether complaint should be in writing simpliciter or complaint being in writing requires signature below such writing?
The Supreme Court held that 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 of the Criminal Procedure Code and the statement of any witness, and the Magistrate has to decide whether there is sufficient ground to proceed.
It was further observed that a person could be called upon to answer a charge of false complaint/perjury only on such verification statement and not merely on the presentation of the complaint as the same is not on oath.
The Supreme Court analysed various sections in the Criminal Procedure Code (CrPC) and noticed 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. For example, Section 70(1) of Cr.P.C. speaks of “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 seal of the court”.
However, the word “signed” is missing from Section 142 of the Negotiable Instrument Act which only speaks of “in writing”. This word is also missing from Section 2(d) of the Cr.P.C. which defines complaint.
Supreme Court also took help from the fact that “writing” as defined by the General Clauses Act, 1897, requires that the same is representation or reproduction of “words” in a visible form and does not require signature. It held that “signature” within the meaning of “writing” would be adding words to the section which the legislature did not contemplate.
In the above case, the complaint was presented in person on 3-6-1998 (in writing but without signature) and on the direction by the Magistrate, the complaint was verified on 30-7-1998 and was duly signed by the authorised officer of the Company, the complainant. It was held that no prejudice had been caused to the accused for non-signing the complaint. The statement made on oath and signed by the complainant safeguarded the interest of the accused.
In view of the same, the Supreme Court held that the requirements of Section 142(a) of the Negotiable Instruments Act are 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.
It was held that the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing, and 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.
Thus, it is seen that a complaint for a cheque dishonour case, if in writing but not signed, can be maintainable since at the time of taking cognizance, the magistrate, in any case, has to examine the complainant on oath and his verification statement will be signed by the complainant.
