TMI Blog2020 (5) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case stalled for a long period. The other factual aspect of the case cannot be decided at the threshold, which is the subject matter of trial. Thus it cannot be said that the filing of complaint was barred by limitation, the learned Magistrate has rightly rejected the objection filed by the applicant by impugned order dated 18.10.2010 which does not call for any interference. The applicant has utterly failed to make out any case that the cognizance is bad in law, hence there is no justifiable reason to quash the proceeding pending against the applicant since 2010. The application is absolutely misconceived and is accordingly dismissed - application dismissed. - Application U/S 482 No. - 37200 of 2010 - - - Dated:- 24-2-2020 - Hon'ble Naheed Ara Moonis, J. For the Applicant : Bharat Bhushan Paul,S.P.Sharma For the Opposite Party : Govt.Advocate ORDER HON'BLE NAHEED ARA MOONIS,J. Heard learned counsel for the applicants, the learned AGA for the State and perused the record. The instant application has been filed invoking the inherent powers of this court under Section 482 Cr.P.C. to quash the proceeding of complaint Case No. 1288 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty no.2 was also cleared in respect of the sale consideration. In the objection the applicant has also denied that no notice whatsoever was received by the applicant. Specific plea was raised in respect of filing the complaint as barred by limitation as the complainant has filed the complaint after four months on 1.5.2006 whereas it ought to have been filed on 19.2.2006 after expiry of 15 days notice. This objection has been rejected by the court below wholly on erroneous ground by holding that such objection cannot be decided at this stage, which will be considered at the time of hearing of the case. The said order was passed on 16.10.2008, as such the same was again challenged before this court by filing 482 Petition No. 3009 of 2009. The petition was allowed and another Bench of this court quashed the order dated 16.10.2008 directing the court below to consider the question of maintainability of complaint first then proceed with the trial if need arises for the same . In pursuance of the direction of this court the learned Magistrate after considering the arguments qua the objection raised by the applicant with regard to maintainability of the complaint rejected the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well-settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation. Considering the dictum of the Apex Court the court directed not to take coercive action against the applicant while issuing notice to the opposite party no.1 on 23.11.2010. Thereafter the aforesaid order was confirmed by order dated 16.9.2011 staying further proceeding of the case. Despite service of notice no counter affidavit has been filed on behalf of the opposite party no. 2. However, the court below has now proceeded against the applicant in view of the order of the Hon'ble Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. and others Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titiously in the name of his wife and the cheque was given when there was no amount of ₹ 2,50,000/- in his account on account of which the cheque was dishonoured and hence the complaint was filed on 1.5.2006 by the opposite party no. 2. After taking into account the oral and documentary evidence the learned court below proceeded to pass the order summoning the applicant to face trial. So far as the filing of the complaint not within time is concerned the objection of the applicant is absolutely baseless which is only in order to linger on the proceeding as twice the court below has rejected the same after considering the provisions of law regarding maintainability, as such the applicant has ample opportunity to raise the objection with respect to the disputed question of fact at the appropriate stage before the trial court. Hence the present 482 petition is liable to be dismissed. This court has given anxious consideration to the arguments advanced by the learned counsel for the applicant and the learned A.G.A. for the State. So far as the question raised by the learned counsel for the applicant that the complaint is barred by limitation for which no separate applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case the disputed cheque no. 546749 dated 25.6.2005 of ₹ 2,50,000/- of State Bank of India, Sadar Bazar, Agra handed over to the complainant by the applicant, which bears his signature and on giving assurance by the applicant when the cheque was deposited by the opposite party no.2 in her account after five months in Punjab National Bank, Agra, the same was returned with the endorsement of insufficient fund in the account of the applicant on 21.12.2005, hence a legal notice was given with respect to the dishonour of the cheque by the complainant through registered post on 4.1.2006, which was received by the applicant but even after expiry of 15 days when the required amount was not paid by the applicant the complaint was filed on 1.5.2006 specifically bringing to the notice that as she fell ill she could not file the complaint within the time and in this regard she has filed medical certificate of the Doctor along with the complaint even during this period also the applicant had not paid the due amount to the opposite party no. 2. The contention of the counsel for the applicant is that the requirement of Section 142 has not been complied with yet the cognizance has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in filing the complaint in view of the proviso to Section 142 of the Act. The complainant had satisfied that she had sufficient cause for not making a complaint within the prescribed period as there is an explanation of the delay in filing the complaint the learned court below has committed no error in rejecting the objection of the applicant in the light of the amended proviso of Section 142 of the Act who however succeeded in getting the proceeding of the present case stalled for a long period. The other factual aspect of the case cannot be decided at the threshold, which is the subject matter of trial. Thus it cannot be said that the filing of complaint was barred by limitation, the learned Magistrate has rightly rejected the objection filed by the applicant by impugned order dated 18.10.2010 which does not call for any interference. The applicant has utterly failed to make out any case that the cognizance is bad in law, hence there is no justifiable reason to quash the proceeding pending against the applicant since 2010. The application is absolutely misconceived and is accordingly dismissed. The interim order is hereby vacated. The disputed questions of fact will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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