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TMI Blog2020 (5) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 had sold her two plots to the wife of the applicant for consideration of Rs. 5 lacs, the payment whereof was given by two cheques. One cheque was honour by the bank while another cheque no. 546759 dated 25.6.2005 was dishonoured by the bank with the memorandum dated 21.12.2005 mentioning "not arranged for". It was mentioned in the complaint that the opposite party no.2 had sent a registered notice on 4.1.2006 but the same was never received by the applicant and has been alleged that despite service of notice no reply was given by the applicant nor made any payment. On the basis of the aforesaid complaint dated 1.5.2006 the statements of the complainant and witnesses were recorded and the court below proceeded to summon the applicant to face trial by order dated 24.5.2006 under Section 138 of Negotiable Instrument Act. The court below has further observed that no prima facie offence is made out under Section 420 I.P.C. Aggrieved by the summoning order dated 24.5.2006 the applicant challenged the proceeding before this court by filing Criminal Misc. Application No. 642 of 2008, which was disposed of with the direction to the applicant to surrender before the court below and apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hence prosecution of the applicant suffers from manifest error of law. The learned counsel for the applicant has relied upon the decision of the Apex Court in U.P. Criminal Rulings 2008 Volume 3 Page 614 Subodh S. Salaskar Vs. Jayprakash M. Shah and another and submitted that it has been specifically held that in the matter of dishonour of cheque unless condition precedent for taking cognizance are not satisfied cognizance of offence cannot be taken. Reliance has been paced in paras 23 and 24 of the aforesaid case, which is delineated herein as under; " 23. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001." "24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the complaint, which is the requirement of the law. The learned A.G.A. has refuted the submission of the learned counsel for the applicant and contended that the order passed by the court below way back on 24.5.2006 summoning the applicant to face trial does not suffer from any error much less any error of law and the case, which has been cited by the learned counsel for the applicant on the basis of which the proceeding has been stayed would not apply in the present facts and circumstances of the case. The disputed question of fact with respect to execution of the sale deed in consideration of Rs. 5 lacs is not disputed at all by the applicant. The opposite party no.2 was handed over two cheques by the applicant. Each of Rs. 2,50,000/-. The applicant had got the sale deed executed in the name of his wife Smt. Prabha Sharma of which reference has been given in the sale deed. As one cheque issued by the applicant was encashed, the other cheque of Rs. 2,50,000/- was returned due to insufficiency of fund in the account of the applicant on 21.12.2005 and hence a legal notice was given by the opposite party no.2 on 4.1.2006 of which neither any reply was given nor payment of the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 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." Section 142 of the Act also puts a limitation in 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 prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 142 of the Act has been added by the Negotiable Instruments (Amendment and Miscellaneous Provision) Act, (55) 2002 with effect from 6.2.2003, which delineates here as under; "Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period." Thus this amended provision was not applicable when the complaint was filed in Subodh S. Salaskar Vs. Jayprakash M. Shah's case for which a separate application for condoning the delay was required to be filed as per the provisions of t he Limitation Act. The Apex Court has held that the proviso to Clause (b) of Section 142 of the Act was inserted in 2002 could not have been retrospective effect, which is a substantive provision, hence the proceeding was quashed holding the complaint in the said case was not filed within time and held that the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. By virtue of the amendment the proviso added in 2002 under Section 142 of the Act does not lay any requirement for filing an application separately under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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