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TMI Blog2020 (7) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... und that cognizance was taken in contravention of the provisions of Section 142 and Section 138(c) of the NI Act. According to the petitioner, the cognizance as taken by the impugned order dated 21.12.2018 is beyond the period of limitation, as prescribed by Section 142(b) of the NI Act. 2. But another question which appears to be ancilliary but pertinent in this case is whether taking congnizance of an offence for dishonour of cheque for insufficiency of fund punishable under Section 138 of the NI Act, with the offence of cheating punishable under Section 420 IPC can be maintained inasmuch as Section 5 of the CrPC provides that nothing contained in the Code (CrPC) shall, in absence of a specific provision to the contrary, affect any speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her statute by laying down distinct provisions, the code cannot be displaced. 5. In Gangula Ashok and Anr. vs. State of A.P., reported in (2000) 2 SCC 504 the apex court again stated that if there is no such contrary provision in any other law, the provision of the Code would apply to the matter covered thereby. 6. In this regard, this Court is of the view that both in Section 138 and Section 142 of the NI Act, a special provision, distinct from the provisions of the CrPC in respect of limitation in taking cognizance has been made. It is apparent that the special statute rolls out distinctly different procedure. 7. It is equally well settled that if the special statute provides a different procedure, the provisions of the CrPC would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel appearing for the petitioner, it would be appropriate to refer to the provisions of Section 142 of the NI Act which provides that notwithstanding anything contained in the CrPC (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 of the cheque in due course; (b) such complaint is made within one month of the date on which the cause of action arises under clause 1(c) of the proviso to Section 138 [provided that cognizance of an offence 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 the said period]. 12. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant in approaching the court for redressal. 14. The petitioner has made a specific allegation that the offence of dishonour of cheque is a statutory violation and such offence cannot be clubbed together with the offence punishable under Section 420 IPC on the same materials. There is no material, as stated earlier, for taking cognizance under Section 420 IPC. Section 142 of the NI Act has provided that the cognizance of the complaint cannot be taken if the complaint is not filed within one month from the date on which the cause of action arises under clause (c) of the proviso of Section 138 of the NI Act. 15. Proviso (c) to Section 138 of the NI Act provides that a drawer of such cheque, if fails to make the payment on the amount of mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not making the complaint within such period. There is no dispute that there was no attempt or application filed from the complainant seeking the court's leave or to satisfy the court that the complainant was prevented by sufficient cause for not making complaint within the said period. The court does not have any power to condone the said period unless the complainant satisfied the court in respect of his disability in filing the complaint within the period, as prescribed by law, as this Court has clearly observed that the complainant while urging the trial court to take cognizance of offence punishable under Section 420 IPC, this was a latent design to have automatic extension. But the court below has committed apparent error by taking c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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