2020 (7) TMI 261 - HC - Indian Laws

Dishonor of Cheque - section 138 of NI Act - case of petitioner is that the cognizance as taken by the impugned order dated 21.12.2018 is beyond the period of limitation as prescribed by Section 142(b) of the NI Act - HELD THAT - The limitation in terms of Section 142 of the NI Act for instituting the complaint had expired on 10.12.2018. The complaint has been filed on 21.12.2018 without seeking leave of the court for extension of time for instituting the complaint as provided below Section 142(1)(b) which provides that such complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act. In the case in hand the cause arose on 11.11.2018 when 15 days from the date of receiving the notice demanding payment of the cheque amount had expired. Thus the cause of action in terms of Section 142(1)(b) of the NI Act arose on 11.11.2018 on expiry of 15 days in making payment in terms of the notice of demand. As this Court having considered the materials has observed that there is no material of Section 420 IPC at least from the complaint no such material is coming to the fore and as such the cognizance under Section 420 IPC was wholly unwarranted. As a result that part of the order is set aside in exercise of the inherent power as provided under Section 482 CrPC. - Since it has been quite categorically observed that no attempt or application was submitted for satisfying the court how the complainant was prevented from not approaching the court in time the complaint was wholly time barred. The order dated 21.12.2018 taking cognizance is set aside but considering the mistake in understanding the law this Court would remand the complaint to the court of the Chief Judicial Magistrate Khowai by providing the petitioner an opportunity to file an application explaining the reasons for not approaching the court in time so that there can be due consideration under proviso to Section 142(1)(b) of the NI Act Such application shall be filed within 15 (fifteen) days from today - Revision petition allowed.

Summary

Issues:
1. Challenge to the order taking cognizance under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code.
2. Applicability of special provisions under the NI Act in contrast to the provisions of the Criminal Procedure Code (CrPC).
3. Examination of the necessity of maintaining separate cognizance for offenses under Section 138 of the NI Act and Section 420 of the IPC.
4. Compliance with the limitation period as prescribed under Section 142 of the NI Act for taking cognizance of offenses.

Analysis:

1. The petitioner challenged the order taking cognizance of offenses under Section 138 of the NI Act and Section 420 of the IPC, arguing that it was beyond the limitation period specified in Section 142(b) of the NI Act. The petitioner contended that the cognizance was barred by limitation and therefore unsustainable in law.

2. The court examined the special provisions of the NI Act, particularly Sections 138 and 142, which provide a distinct procedure for offenses related to dishonor of cheques. It was noted that the NI Act lays out a specific limitation period for taking cognizance, which differs from the procedural requirements of the CrPC. The court emphasized that the special statute of the NI Act provides a different procedure, and the provisions of the CrPC would not apply to the extent of inconsistency.

3. The court further analyzed the necessity of separate cognizance for offenses under Section 138 of the NI Act and Section 420 of the IPC. It was observed that the complaint lacked materials to support the offense under Section 420 IPC, and cognizance under this section was deemed unwarranted. The court set aside the order taking cognizance under Section 420 IPC, highlighting the lack of supporting material in the complaint.

4. Compliance with the limitation period under Section 142 of the NI Act was a crucial aspect of the judgment. The court found that the complaint was time-barred as it was filed after the prescribed period without any application seeking an extension of time. The court emphasized that the complainant must satisfy the court regarding any sufficient cause for the delay in filing the complaint within the specified period.

In conclusion, the court allowed the revision petition, setting aside the order taking cognizance and remanding the complaint to the lower court for further consideration. The petitioner was granted an opportunity to file an application explaining the reasons for the delay in approaching the court, as per the provisions of Section 142(1)(b) of the NI Act. The judgment highlighted the importance of complying with the statutory provisions and the necessity of providing valid reasons for any delay in legal proceedings.