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TMI Blog2012 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates”. This Court further held that “the complainant has no control over those proceedings”. Taking note of Sections 468 and 473 of the Code, in para 52, this Court held that “for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court”. Period of Limitation - held that:- Crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the present case complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts maintained by the complainant regarding the transactions with the accused. In addition to the same, Respondent No.3, vide letter dated 29.05.1998, made various claims for the rate difference, discounts etc., in respect of the transactions, however, Respondent No.1 filed a complaint on 03.06.1998 being Complaint No. 1866/SS of 2007 (1866/MISC/1998) under Section 138 read with Sections 141 and 142 of the Act. On 30.07.1998, the Metropolitan Magistrate recorded the verification statement and issued summons against the appellants and respondent No.3 herein. (d) The appellants preferred an application being C.C. No. 1332/9/1999 before the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai for recalling the process issued against them. By order dated 28.08.2003, the Metropolitan Magistrate, dismissed the said application. (e) Challenging the said order, the appellants and respondent No.3 herein filed an application in the Court of Sessions for Greater Bombay at Bombay bearing Criminal Revision Application No. 749 of 2003. By Order dated 08.10.2004, the Sessions Judge dismissed the said application as not maintainable. (f) By order dated 26.11.2008, the Metropolitan Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act without signature of the complainant is not maintainable; ii) there is no provision in the Act regarding verification. Even otherwise, the verification was signed by the complainant after expiry of the limitation period, hence, the impugned complaint is liable to be rejected; and iii) inasmuch as the Act is a special Act, it must prevail over procedures provided in the Code. On the other hand, Mr. Lalit, learned senior counsel for the contesting first respondent-the complainant contended that in the light of the language used in Section 2(d) read with various provisions of the Code and Section 142 of the Act, the complaint, as filed and duly verified before the Magistrate and putting signature therein, satisfies all the requirements. He further submitted that the conclusion of the Division Bench upholding the complaint and the issuance of summons for appearance of the accused are valid and prayed for dismissal of the above appeals. 6) We have carefully considered the rival submissions and perused all the relevant materials. 7) From the rival contentions, the only question for consideration before this Court is that whether the complaint without signature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and in particular phrase a complaint in writing employed therein. It provides that notwithstanding anything contained in the Code, no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. The important question in the instant case is what is meant by complaint in writing . Whether complaint should be in writing simpliciter or complaint being in writing requires signature below such writing. 10) The object and scope of Sections 138 and 142 of the Act has been considered by this Court in Pankajbhai Nagjibhai Patel vs. State of Gujarat and Another, (2001) 2 SCC 595. In that case, Judicial Magistrate of the First Class, after convicting an accused for an offence under Section 138 of the Act sentenced him to imprisonment for six months along with a fine of Rs.83,000/- The conviction and sentence were confirmed by the Sessions Judge in appeal and the revision filed by the convicted person was dismissed by the High Court. When the SLP was moved, the counsel confined his contention to the question whether a Judicial Magistrate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litan Magistrate or Judicial Magistrate of the First Class shall try the said offence. 8. Thus, the non obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a Magistrate of the First Class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of the First Class in the matter of imposing a sentence as noticed above i.e. if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed Rs 5000. 11) It is also relevant to refer a decision of this Court in M.M.T.C. Ltd. and Another vs. Medchl Chemicals and Pharma (P) Ltd. and Another, (2002) 1 SCC 234. The question in that decision was whether a complaint filed in the name and on behalf of the company by its employee without necessary authorization is maintainable. After analyzing the relevant provisions and language used in Sections 138 and 142(a) of the Act, this Court held that such complaint is maintainable and held that want of authorization can be rectified even at a subsequent stage. This Court further clarified that the onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to follow the procedure under Section 200 of the Code once he has taken the complaint of the payee/holder in due course and record statement of the complainant and such other witnesses as present at the said date. Here, the Code specifically provides that the same is required to be signed by the complainant as well as the witnesses making the statement. Section 200 of the Code reads thus: 200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. .. 164. Recording of confessions and statements. Xxx xxxx (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect- 281. Record of examination of accused. (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record .. A perusal of the above shows that the legislature has made it clear that wherever it required a written document to be signed, it should be mentioned specifically in the section itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of Mr. Bhagwati Prasad, learned senior counsel for the appellant that the limitation period expired on the date of verification and the complaint cannot be entertained. In view of the above discussion, we are unable to accept the said contention. 17) In Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394, in para 48, this Court held that so far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates . This Court further held that the complainant has no control over those proceedings . Taking note of Sections 468 and 473 of the Code, in para 52, this Court held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court . 18) In the light of the scheme of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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