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Supreme Court of India
N. Harihara Krishnan vs J. Thomas on 30 August, 2017
Author: Chelameswar
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1534 OF 2017
(Arising out of SLP(Crl.) No.1439 of 2017)
N. Harihara Krishnan Appellant
Versus
J. Thomas Respondent
JUDGMENT
Chelameswar, J.
23. The scheme of the prosecution in punishing under Section 138 of THE ACT 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 each of the ingredients of the offence under Section 138. Those ingredients
are: (1) 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 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 138 that each one of the ingredients flows from a document which 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 of the 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 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 138, 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 138, 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 142 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.
