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TMI Blog2014 (8) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 and could be said to be a valid notice in the light of this Court s Judgment in Central Bank of India Anr. (1999 (10) TMI 718 - Supreme Court of India). It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling upon him to make the payment. Upon non-compliance by the respondent, a formal legal notice dated 24th May, 2012 (Annexpure P5) was issued under Section 138/142 of the Act requiring the respondent to pay the cheques amount along with interest and costs. In his reply to the legal notice, the respondent totally disagreed with the allegation of taking loan from the appellant. Subsequently, the appellant filed a Complaint Case against the respondent invoking Sections 138, 141 and 142 of the Act and Section 420, of the Indian Penal Code. The Metropolitan Magistrate took cognizance and summoned the respondent who pleaded not guilty and claimed to be tried. 5. During the pendency of trial, the respondent filed Criminal Miscellaneous Case before the High Court under Section 482, Cr.P.C. for quashing of criminal proceedings pending before the Trial Court. The High Court expressed the view that the complaint was not filed within a period of one month after the expiry of 15 days of receipt of the notice dated 27th April, 2012 and hence it was barred by limitation under Section 142(b) of the Act and by the impugned judgment quashed the criminal proceedings against the respondent. Aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Trial Court and the issue of limitation was raised for the first time before the High Court. 9. Even otherwise, before quashing the criminal proceedings on the ground of limitation, the High Court could have decided whether sufficient cause was made out by the appellant under the proviso to Section 142(b) of the Act, and if satisfied, it could have condoned the delay. Alternatively, the High Court could have remanded the matter to the Trial Court to determine the issue. In support of his submissions, he placed reliance on a judgment of this Court in Rakesh Kumar Jain Vs. State (Through CBI) (2000) 7 SCC 656, in which while considering the provisions of Section 473, Cr.P.C. and deciding the question whether on the ground of limitation, the accused is entitled to seek his discharge, this Court held: The mere fact that the complaint was filed 25 days after the expiry of the period of limitation did not entitle the accused to seek his discharge under Section 245, Cr.P.C because the complainant has, under law, a right to seek for extension of time under Section 473 Cr.P.C. The complainant could satisfy the Magistrate on the facts and circumstances of the case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138(b) of the Act. Therefore, he submitted that the High Court was right in considering the handwritten note as notice for the purpose of calculating delay in filing the Complaint and it rightly declared that the Complaint was barred by limitation. 12. Learned counsel for the respondent further contended that even though the proviso to Section 142(b) of the Act facilitates condonation of delay if the complainant satisfies the Court that he had cogent reasons for not making the complaint within the limitation period, in the present case the complainant had made no request before the High Court for availing such benefit of condonation of delay. To substantiate his argument, learned counsel relied upon the counter affidavit filed by the appellant before the High Court and submitted that there also the appellant, instead of pleading for condonation of delay, took the stand that the communication dated 27th April, 2012 shall not be treated as notice, whereas it fulfilled all ingredients of a notice under Section 138 of the Act. In support of his claim that the matter is barred by limitation and requires to be dismissed at the threshold itself, he relied on this Court s Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the Cheque, within thirty days of the receipt of information by him from the bank regarding the return of the Cheque as unpaid; and (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 fifteen days of the receipt of the said notice. 16. Section 142 of the Act also puts a limitation on the power of the Court to take cognizance of the offences, which reads as under: 142. Cognizance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) 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 the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the Court after the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount of ₹ 60,00,000/- given by the appellant as loan to the respondent under promissory notes; (b) the details of Cheque numbers and dates of issue with amounts and particulars of Bank; (c) Returning of Cheques by the banker dishonouring them on the ground of Stop Payment by the respondent; (d) a demand for immediate repayment of the amount; and (d) a caution to the respondent that in case of failure on the part of respondent, the appellant would initiate legal proceedings. Thus, in our opinion, the handwritten note dated 27th April, 2012 fulfilled the mandatory requirements under clause (b) of proviso to Section 138 and could be said to be a valid notice in the light of this Court s Judgment in Central Bank of India Anr. (supra). Moreover, this document (Annexure P4) stands admitted by the appellant in his cross examination also. Therefore, in our opinion, the High Court has committed no error in considering the handwritten note dated 27th April, 2012 as notice under Section 138 of the Act. 20. However, when the issue of limitation has come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled principles of law in Rakesh Kumar Jain, MSR Leathers. Subodh S. Salaskar (supra) and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation. 24. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, complainant can be given opportunity at any stage of the proceeding. As already discussed by us in the foregoing paragraphs, we have come to the irresistible conclusion, to afford an opportunity for the complainant to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case. 25. For all the aforesaid reasons, in order to meet the ends of justice, we exercise our discretion under Article 142 of the Constitution and set aside the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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