9911796707
Advanced Search 
TMI Blog2020 (9) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... egotiable Instrument Act ('N.I. Act' for short) was taken. 2. Brief facts are as under: According to the respondent complainant, the petitioner had borrowed a sum of Rs. 20,00,000/- on 09.05.2016 promising that the said sum would be refunded as and when required. When the complainant requested for the refund of the loan amount the accused issued a cheque dated 17.07.2020 for a sum of Rs. 20,00,000/- drawn on Syndicate Bank, Sepahijala from his account. This cheque was presented by the complainant to his Bank for realization. The cheque was returned with endorsement dated 19.07.2017 that the cheque could not be honoured due to insufficient funds. The complainant thereupon issued notice under Section 138 of the N.I. Act on 02.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Magistrate has the power to condone the delay. There is no requirement that a separate application seeking condonation should be filed. The delay is explained in the complaint itself. Petition may therefore be dismissed. 5. As is well-known Section 138 of the N.I. Act lays down that timelines for issuing notice of repayment and if no such repayment is made for filing complaint before the Magistrate when a cheque upon its presentation has been dishonoured. Section 142 of the N.I. Act pertains to cognizance of offences. Sub-Section (1) of Section 142 inter alia provides that notwithstanding anything contained in the Code of Criminal Procedure, (a) no court shall take cognizance of any offence punishable under Section 138 except upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It would thus appear that the appellant was entitled to the benefit of sub-section (1) of Section 468 which prohibits every Court from taking cognizance of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under Section 468 of the Cr.P.C. and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence...." 11. In case of State of Maharashtra vs. Sharadchandra Vinayak Dongre and others, reported in (1995) 1 SCC 42, the accused had filed a petition before the High Court which under Section 482 Cr.P.C. challenging the cognizance taken by the Magistrate condoning the delay without hearing the accused. The High Court held that the Chief Judicial Magistrate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a 'supplementary charge-sheet' on the basis of an 'incomplete charge-sheet' and quashed the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous." 10. In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant was entitled to get an opportunity of being heard befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
