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TMI Blog2014 (12) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... ine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Section 473 Cr.P.C. In Sarah Mathew v. Institute of Cardio Vascular Diseases [ 2013 (11) TMI 1587 - SUPREME COURT ], the Honourable Supreme Court has held that for computing the period of limitation, the crucial date shall be the date of presentation of the complaint. If the date of presentation of the complaint is beyond the period of limitation prescribed under Section 142 of The Negotiable Instruments Act, it is absolutely necessary for the complainant to explain such delay by showing sufficient cause. In the case on hand, admittedly, no such petition was filed and no such explanation was offered. But, the lower Court, without noticing that there was a delay in presenting the complaint, has inadvertently taken cognizance. Had the lower Court noticed the delay, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Magistrate repeatedly and finally cognizance was taken on 22.01.2007. 5. Before going into further facts of the case, let us have a quick look into the legal position. Prior to the Amendment Act 55 of 2002, which came into force on 06.02.2003, for condonation of delay in taking cognizance of an offence under Section 138 of The Negotiable Instruments Act on a private complaint, there was no enabling provision in The Negotiable Instruments Act. Indisputably, Section 5 of the Limitation Act is also not applicable to criminal proceedings except for appeals or revisions, for which, express provisions have been made in Articles 114, 115, 131 and 132 of the said Act. In respect of other offences, Section 473 of the Code of Criminal Procedure enables the Magistrate/Court to condone the delay. Why such a provision was introduced in the Code of Criminal Procedure should be taken note of. Chapter XXXVI was inserted in the Code of Criminal Procedure, prescribing limitation period for taking cognizance and making provisions for extension of period of limitation (vide Section 473 Cr.P.C.) with a view to quicken the prosecution of complaints and to rid the criminal justice system of inconseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. Section 142 of The Negotiable Instruments Act 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 period. 8. The Honourable Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy (1993) 3 SCC 4 has noted the basic difference between Section 5 of the Limitation Act and Section 473 of the Code of Criminal Procedure. In para 6 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable Instruments Act. This makes the difference between the proviso to Section 142 of The Negotiable Instruments Act and Section 473 Cr.P.C. As we have already seen, the proviso to Section 142 of The Negotiable Instruments Act and Section 5 of the Limitation Act are in pari materia. Therefore, as held by the Honourable Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy (supra), so far as the offence under Section 138 of The Negotiable Instruments Act is concerned, if there is a delay in presenting the complaint, the same requires to be satisfactorily explained only by the complainant and the Court cannot condone such delay in the interest of justice as it could be done under Section 473 Cr.P.C. Therefore, it is absolutely necessary for the Court to examine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vanka Radhamanohari. The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus jura subveniunt. Chapter XXXVI Cr.P.C. which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. Court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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