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2017 (10) TMI 976 - HC - Indian LawsDishonour of cheque - offence under section 138 of the NI Act - period of limitation - Held that - Since the complaint petition has been filed beyond the prescribed period of one month and the learned Magistrate has not condoned the delay after being satisfied with the sufficient cause shown by the complainant for not making the complaint within such prescribed period, on a careful consideration of the submission made at the Bar impugned order dated 25.02.2003 passed by the learned S.D.J.M., Jagatsinghpur in I.C.C. Case No. 127 of 2002 in taking cognizance of offences punishable under section 138 of the N.I. Act read with section 420 of the Indian Penal Code is not sustainable in the eye of law and accordingly, the same stands quashed.
Issues Involved:
1. Validity of the cognizance taken under section 138 of the Negotiable Instruments Act, 1881 (N.I. Act) read with section 420 of the Indian Penal Code (IPC). 2. Compliance with the time limitations prescribed under section 142 of the N.I. Act. 3. Validity of the second notice issued by the complainant. 4. Satisfaction of the court regarding the delay in filing the complaint. Issue-wise Detailed Analysis: 1. Validity of the Cognizance Taken: The petitioner challenged the order dated 25.02.2003 by the S.D.J.M., Jagatsinghpur, which took cognizance of the offence under section 138 of the N.I. Act read with section 420 of the IPC. The petitioner argued that the cognizance was barred by limitation as per section 142 of the N.I. Act. 2. Compliance with Time Limitations under Section 142 of the N.I. Act: The complaint petition was filed on 21.12.2002, which the petitioner contended was beyond the prescribed period. According to section 142(1)(b) of the N.I. Act, the complaint must be filed within one month from the date on which the cause of action arises. The cause of action arose on 04.07.2002, when the complainant served a personal notice to the petitioner. The complaint should have been filed within one month from the completion of fifteen days after this notice, but it was not. 3. Validity of the Second Notice: The petitioner argued that there is no provision under the N.I. Act to serve a second notice, as was done on 26.10.2002. The second notice was beyond the period of fifteen days as prescribed under clause (b) of the proviso to section 138 of the N.I. Act. The cause of action arises based on the first valid notice, and not on the second notice. The court agreed that the second notice does not grant a fresh cause of action, and the complaint should have been filed based on the first notice. 4. Satisfaction of the Court Regarding Delay: The petitioner contended that the learned Magistrate did not reflect any satisfaction regarding the delay in filing the complaint. The proviso to section 142(1)(b) allows the court to take cognizance after the prescribed period if the complainant shows sufficient cause for the delay. However, the impugned order did not indicate any such satisfaction by the Magistrate. Legal Precedents Cited: The court referred to several precedents, including the case of Yogendra Pratap Singh vs. Savitri Pandey, which highlighted the necessity of fulfilling all eventualities under clauses (a), (b), and (c) of the proviso to section 138 for an offence to be constituted. The court also cited Sadanandan Bhadran vs. Madhavan Sunil Kumar, emphasizing that the cause of action arises only once, and subsequent notices do not create new causes of action. Conclusion: The court concluded that the complaint was filed beyond the prescribed period, and the learned Magistrate did not condone the delay. Thus, the order dated 25.02.2003 taking cognizance of the offences was not sustainable in law and was quashed. Given the time elapsed and the amount involved, the court refrained from allowing the complainant to seek condonation of delay. Final Order: The CRLMC application was allowed, and the impugned order was quashed.
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