TMI Blog2022 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... ice as laid down in section 138 (c) of the Negotiable Instrument Act. In section 142 (1)(a) it has been laid down that notwithstanding anything contained in the Code of Criminal Procedure, 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 a cheque and section 142 (1)(b) provides that such complaint is to be made within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138. In the instant case learned ACJM, Raghunathpur has acted beyond his jurisdiction by issuing summons to the petitioner without 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has been material suppression of facts in the complaint and the complaint has been lodged beyond the statutory period under section 142 (a) of the Negotiable Instrument Act, as such the same is not maintainable. The petitioner alleged that learned Magistrate on the basis of the complaint lodged by opposite party no. 2 took cognizance of the offence under section 138 of N.I. Act and issued process to the petitioner. On 19.4.2013 petitioner filed an application for his discharge from the case. In the meantime, on 4.6.2013 the opposite party no. 2 filed an application under section 5 of the Limitation Act praying for condonation of delay in filing of the case of 15.6.2013. 4. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle 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 the complainant for adding offence under section 420 of IPC which was allowed on 14.8.2001. The accused filed an application for discharge on the ground that the complaint was barred by limitation but the application was dismissed. The revisional application filed before the Learned Additional Sessions Judge as well as criminal writ petitions were dismissed. The accused preferred an appeal before the Hon ble Supreme Court where a question arose whether the proviso appended to section 142 (b) of the Negotiable Instrument Act, inserted by the amendment Act of 2002, is retrospective in operation. It was held by the Hon ble Supreme Court that delayed complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 15.9.1999. A complaint under section 138 of the N.I. Act was filed by the complainant through his power of attorney holder within one month. The trial court convicted the respondents for the offence and sentenced him to imprisonment. Being aggrieved the respondent filed a revisional application before the Additional Sessions Judge and the revisional court set aside the judgment of conviction of the trial court. Against this order of acquittal a revisional application was filed before the High Court. On considering the matter involved Hon ble Court held that there was no illegality in the order impugned as the cognizance taken in the case was barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fund. On the ground of illness the complainant issued notice to the accused petitioner only on 12.11.2012 demanding payment of the cheque amounts. The complaint was lodged on 15.1.2013. This case was filed after amendment of the N.I. Act in 2002. Therefore the decisions in the case of Subodh S. Salaskar, A.K. Maheshwary and Bangur Finance Limited would not apply to the facts and circumstances of this case. In the case of Dipak Majumder Vs. Swapan Poddar (CRR 154 of 2018), learned Single Judge of this court referring to the substantive provision incorporated in proviso to clause (b) of section 142 of the Negotiable Instrument Act by way of amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 with section 138 proviso (b) of the N.I. Act. 18. Learned Magistrate shall provide an opportunity to the complainant to exercise his legal right under the proviso to section 142 (b) of the N.I. Act to satisfy the court if he had sufficient cause for not filing the complaint within statutory time. After considering such grounds learned Magistrate shall proceed in accordance with the law and record an order if cognizance can be taken fulfilling the statutory provisions. 19. The revisional application is therefore allowed. Interim order if any stands vacated. Let a copy of this judgment be sent to the court of Learned ACJM, Raghunathpur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
