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TMI Blog2003 (2) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... I Act ) were issued. The respondents, in turn, issued replies requesting time for making arrangements. The petitioner did not take any further steps for quite sometime. Ultimately, when the respondents did not keep up their promise in payment of the amount, the petitioner submitted complaints before the Court of Judicial Magistrate of First Class, Adoni, along with applications to condone the delay in presentation of the same. The trial Court dismissed the complaints on the grounds that they were barred by limitation that and section 5 of the Limitation Act, 1963, does not apply to the proceedings under the NI Act. 4. The learned counsel for the petitioner Sri Badana Bhaskara Rao, submits that the NI Act does not exclude the application of the provisions of the Limitation Act to the proceedings under it and in view of section 29(2) of the Limitation Act, section 5 of the Act applies to the proceedings under the NI Act. It is his case that the petitioner had offered proper explanation for delay in submission of the complaints and the delay ought to have been condoned. He has placed reliance upon the two judgments of the Orissa High Court in Janardhan Mohapatra v. Saroj Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of and try offences under section 138 of the Act. Under clause ( a ), such court is prohibited from taking cognizance except upon a written complaint; made by the payee or holder in due course of the cheque. Clause ( b ) prescribes the time within which a complaint can be made. A close reading of the section indicates that clause ( b ) cannot be read independently nor can it be read in continuation of the non obstante clause or clause ( a ). Little more care ought to have been taken while drafting the section. A redeeming feature, however, is that notwithstanding the linguistic and grammatical deficiencies in it, the section as a whole, convey its object and intention. The section as a whole requires that the cognizance of the offence under section 138 shall not be taken unless the complaint is made within one month from the date on which the cause of action has arisen. The circumstance referred to under clause ( c ) of section 138 is treated as constituting the cause of action. The same reads as under : "( c )The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course, of the cheque, within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is aspect has been made very clear. 8. The question as to when a special law can be said to have expressly excluded the application of sections 4 to 24 of the Limitation Act fell for consideration before the Hon ble Supreme Court in Union of India v. Popular Construction Co. [2001] 8 SCC 470. It was held therein that even where the special law does not contain the provisions, expressly excluding the application of sections 4 to 24 of the Limitation Act, it would still be open to the Court to examine as to the extent to which the Scheme of the Act, the nature of the subject-matter and purport of the provisions of the special law would envisage such an exclusion. 9. One of the guiding factors adopted was that if the special law, in addition to prescribing the period of limitation, goes further and prohibits taking cognizance of the proceedings, beyond a particular period of limitation, it should be construed that the power to condone delay stands excluded and thereby section 5 comes into picture. Considering section 34 of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act ), the Supreme Court held that since the section prohibited the courts from e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it emerges that section 142 of the NI Act prohibits the Court from taking cognizance of an offence, except where it is made within one month from the date on which the cause of action arose. The words "no courts shall take cognizance of offence" and the non obstante clause galvanizing the proceedings under the Act from any thing contained in the Code of Criminal Procedure, 1973 in that regard, assume significance. When the section places a complete bar on taking cognizance of an offence, except where the complaint is made within one month from the date on which the cause of action arose, the power to condone delay under section 5 of the Limitation Act stands excluded. 11. Apart from that, the insertion of Chapter XVII comprising of sections 138 to 142, in the NI Act, was for a definite and avowed purpose. The cases relating to dishonour of cheques were to be dealt with in accordance with the special procedure. The object was to provide a speedier and effective remedy, relieving the proceedings, of the traditional delays and procedural bottlenecks. Therefore, notwithstanding the language of section 29(2) of the Limitation Act, 1963, the application of section 5 of that A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes substantive, as distinct from purely procedural characteristic. The same is not the case with appeals and applications. Omission of reference to suits in section 5 is very significant in this regard. 15. In Janardhan Mohapatra s case ( supra ) and Satish Kumar Goenka s case ( supra ), the Orissa High Court took the view that section 5 of the Limitation Act applies to the proceedings under section 138 of that Act. In both the cases much turned around the view taken by the learned Judges on the question as to whether the complaint should be treated as an application referred to in section 5 of the Limitation Act and also sub-section (2) of section 29 of the said Act. 16. I fail to agree with the learned Judges of the Orissa High Court for two reasons. Firstly, whatever be the nomenclature one may chose to give to the complaint alleging offence under section 138, it has to be treated only as an original proceeding and not otherwise. Therefore, the question of condonation of delay in respect of original proceedings does not arise. Secondly, the basis for reliance on section 29(2) of the Limitation Act vis- -vis the proceedings under the Limitation Act, disappears wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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