9911796707
TMI Blog2022 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner borrowed a some of money from opposite party no. 2 for his business and in discharge of his liability the petitioner issued two cheques of Rs.1,50,000/- and Rs.2,20,00/- in favour of the opposite party no. 2 drawn on Axis Bank Limited, Durgapur Branch. The payee, deposited the cheques with the State Bank of India, Raghunathpur Branch for encashment but both the said cheques were dishonoured due to insufficiency of fund. A complaint was lodged against the petitioner under section 138 of the Negotiable Instrument Act where it was disclosed that due to illness of the petitioner from 15.5.2012 to 11.11.2012 he could not make any contact with the petitioner and on 12.11.2012 he issued a notice to the petitioner demanding repayment of the amount in terms of section 138 of the Negotiable Instrument Act. It was further stated that due to his illness and medical treatment the opposite party no. 2 was prevented from filing the case against the petitioner. Strange enough cognizance was not taken by learned Magistrate on 15.1.2013 but summons were issued. Thereafter on 4.6.2013 a petition was filed by the complainant for condonation of delay. 3. According to the revisionist there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner argued that the present application has been filed not only against the impugned order of learned Magistrate dated 25.7.2013 whereby the prayer for discharge was rejected but he has assailed the entire proceeding as it is barred by limitation and the cognizance taken in the case without condonation of delay is bad in law and cannot be proceeded with. 8. Learned advocate for the petitioner buttress his argument by placing reliance upon the decisions in the case of - (I) Subodh S. Salaskar Vs. Jayprakash M. Shah and Anr.; (2008) 13 Supreme Court Cases 689. (II) Dipak Majumder Vs. Swapan Poddar; C.R.R 154 of 2018, a unreported judgment of learned Single Judge of this court. (III) A.K. Maheshwary Vs. State of West Bengal; (2012) 2 C Cr LR (Cal) 850 and (IV) Bangur Finance Limited Vs. Tejesh Ranjan Ghosh; 2007 (2) CHN page 893. 9. Learned advocate for the petitioner referring the decision in the case of Subodh S. Salaskar Vs. Jayprakash M. Shah and Anr; (2008) 13 Supreme Court Cases 689, submitted that a case for dishonour of cheque under section 138 of the N.I Act was filed on 20.4.2001. Subsequently, an application to amend the complaint petition was filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take cognizance of any offence under section 138 if the petition is barred by limitation and the process of issuance summons also becomes illegal as he has no jurisdiction to proceed with such matter. 11. The next case relied on behalf of the petitioner is Dipak Majumder Vs. Swapan Poddar; (C.R.R 154 of 2018), were the learned Single Judge of this court also placing reliance upon the ration in the case of Subodh S. Salaskar Vs. Jayprakash M. Shah, set aside the judgment in a criminal appeal were the learned Additional Sessions Judge failed to consider the issue of limitation in a case arising out of section 138 of the N.I. Act and directed the learned Judge of the First Appellate Court to adjudicate the issue as to whether the appeal is barred by limitation or not. 12. In A.K. Maheshwary Vs. State of West Bengal; (2012) 2 C Cr LR (Cal) 850, the cheque issued for repayment of debt was dishonoured by the bank due to insufficiency of fund. On 9.9.1999 petitioner issued a notice which was served upon the respondent by registered post but no information of service was received. After correspondence it was learn from the post office that the notice was served upon the respondent on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation was raised for the first time before the High Court, High Court ought to have dealt with that issue on merit as per proviso to section 142 (b) of the N.I. Act, 1881. The said proviso was inserted in the year 2002 with a legislative intent to overcome the technicality of limitation period only with a view to obviate the difficulties on the part of the complainant, parliament inserted the said proviso to section 142 (b) of the N.I. Act, which confers a jurisdiction upon the court to condone the delay. 15. Having considered the facts and circumstances involved in this case and the argument advance by learned advocates for the parties, it appears to me that the moot question which needs to be resolved during hearing is whether the order passed by learned Magistrate, supposed to have taken cognizance of the offence is tenable under the provisions of section 138 and 142 of the Negotiable Instrument Act. It may be gathered from the impugned order dated 25.7.2013 that two cheques of Rs.1,50,000/- and as Rs.2,20,000/- were drawn by the petitioner on 2.5.2012 in favour of opposite party no.2. The cheques were presented for encashment but were dishonoured due to insufficiency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout even taking cognizance of the offence, contrary to the provision laid down in the Act, without having any occasion of being satisfied for condoning the delay. Taking of cognizance on satisfactory condonation of delay are statutory requirements which cannot be presumed on issuance of process to accused. The impugned order is bad in law and is not tenable under such circumstances. Therefore, the order dated 15.1.2013 and all the successive orders is proceeding are bad in law and are set aside. 17. It is to be borne in mind that with the amendment of section 142 in the year 2002, a proviso has been introduced which lays down that cognizance of a compliant 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 of thirty days. There is material on record to indicate that a complaint has been lodged under section 138 of the N.I. Act against the petitioner for dishonour of his cheques and for which notice has already been issued to him demanding repayment. It is also to be seen if notice was issued to the drawer within thirty days of dishonour of the cheques in compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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