2022 (5) TMI 1034 - HC - Indian Laws

Dishonor of Cheque - complaint has been lodged beyond the statutory period under section 142 (a) of the Negotiable Instrument Act or not - whether the order passed by learned Magistrate, supposed to have taken cognizance of the offence is tenable under the provisions of section 138 and 142 of the Negotiable Instrument Act? - section 138 of N.I. Act - HELD THAT - It may be gathered from the impugned order dated 25.7.2013 that two cheques of Rs.1,50,000/- and as Rs.2,20,000/- were drawn by the petitioner on 2.5.2012 in favour of opposite party no.2. The cheques were presented for encashment but were dishonoured due to insufficiency of fund. On the ground of illness the complainant issued notice to the accused petitioner only on 12.11.2012 demanding payment of the cheque amounts. The complaint was lodged on 15.1.2013. This case was filed after amendment of the N.I. Act in 2002. It is apparent that the complaint was filed long after the lapse of the statutory period of thirty days from the date of cause of action that is the expiry of fifteen days from the date of service of the notice as laid down in section 138 (c) of the Negotiable Instrument Act. In section 142 (1)(a) it has been laid down that notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing made by the payee or, as the case may be, the holder in due course of a cheque and section 142 (1)(b) provides that such complaint is to be made within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138. In the instant case learned ACJM, Raghunathpur has acted beyond his jurisdiction by issuing summons to the petitioner without even taking cognizance of the offence, contrary to the provision laid down in the Act, without having any occasion of being satisfied for condoning the delay. Taking of cognizance on satisfactory condonation of delay are statutory requirements which cannot be presumed on issuance of process to accused. The impugned order is bad in law and is not tenable under such circumstances. It is to be borne in mind that with the amendment of section 142 in the year 2002, a proviso has been introduced which lays down that cognizance of a compliant may be taken by the court after the prescribed period if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period of thirty days. There is material on record to indicate that a complaint has been lodged under section 138 of the N.I. Act against the petitioner for dishonour of his cheques and for which notice has already been issued to him demanding repayment. It is also to be seen if notice was issued to the drawer within thirty days of dishonour of the cheques in compliance with section 138 proviso (b) of the N.I. Act. The revision application allowed.

Summary

Issues Involved:
1. Quashing of proceedings under section 138 of the Negotiable Instrument Act.
2. Condonation of delay in filing the complaint under section 142 of the Negotiable Instrument Act.
3. Validity of cognizance taken by the Magistrate without condonation of delay.
4. Applicability of the amendment to section 142(b) of the Negotiable Instrument Act.

Issue-wise Detailed Analysis:

1. Quashing of proceedings under section 138 of the Negotiable Instrument Act:
The petitioner filed a revisional application under section 482 of the Code of Criminal Procedure, 1973, seeking to quash the proceedings and the impugned order dated 25.7.2013 passed by the Additional Chief Judicial Magistrate, Raghunathpur, District Purulia, in Complaint Case No. 2 of 2013 under section 138 of the Negotiable Instrument Act. The complaint alleged that the petitioner issued two cheques which were dishonored due to insufficiency of funds. The petitioner argued that the complaint was lodged beyond the statutory period and hence, not maintainable.

2. Condonation of delay in filing the complaint under section 142 of the Negotiable Instrument Act:
The complainant filed an application for condonation of delay under section 5 of the Limitation Act on 4.6.2013. The petitioner contended that the complaint was filed beyond the statutory period under section 142(a) of the Negotiable Instrument Act, and no application for condonation of delay was filed initially. The court observed that the issuance of summons does not dispense with the mandatory statutory requirement of condonation of delay.

3. Validity of cognizance taken by the Magistrate without condonation of delay:
The petitioner argued that the cognizance taken by the Magistrate was bad in law as it was done without condonation of delay. The court noted that the Magistrate took cognizance of the offence and issued summons without considering the petition for condonation of delay, which is contrary to the provisions of section 142 of the Negotiable Instrument Act. The court held that taking cognizance without satisfying the statutory requirements is not tenable under the law.

4. Applicability of the amendment to section 142(b) of the Negotiable Instrument Act:
The court considered the amendment to section 142(b) of the Negotiable Instrument Act, which allows the court to take cognizance of a complaint filed after the prescribed period if the complainant satisfies the court that there was sufficient cause for the delay. The court referred to several precedents, including Subodh S. Salaskar Vs. Jayprakash M. Shah and Anr., where it was held that delayed complaints should not be allowed unless the delay is condoned. The court also referred to Pawan Kumar Ralli Vs. Maninder Singh Narula, where the Supreme Court held that the issue of limitation should be dealt with on merit as per the proviso to section 142(b) of the N.I. Act.

Conclusion:
The court concluded that the complaint was filed long after the lapse of the statutory period, and the Magistrate acted beyond his jurisdiction by issuing summons without taking cognizance of the offence or condoning the delay. The court set aside the impugned order dated 15.1.2013 and all successive orders. The Magistrate was directed to provide the complainant an opportunity to satisfy the court regarding the delay and proceed in accordance with the law. The revisional application was allowed, and the complainant was instructed to appear before the concerned court within a fortnight.