D. Ramamoorthi vs K.J. Duraisamy

Janarthanam, J.—The petitioner in this action is the accused in C.C. No. 381 of 1993, before the Judicial Magistrate No. III, Erode, which

had been taken on file on the launching of a prosecution in the shape of preference of a complaint by the respondent, for the alleged offence u/s

138 of the Negotiable Instruments Act, 1881 (Act No. 26 of 1881) (hereinafter referred to as ""the Act"").

(a) It appears that the petitioner/accused issued a cheque dated August 20, 1992, for a specified sum of money towards discharge of a debt to the

respondent/complainant. When the cheque so issued had been presented for encashment on August 21, 1992, the same had been returned unpaid

on the same date, for want of funds. Again the said cheque appears to have been represented on October 19, 1992, for encashment and on the

same day, the cheque had been returned unpaid for want of funds.

(b) Consequently, the respondent/complainant issued a statutory notice on October 24, 1992, to the petitioner/accused, demanding compliance of

the payment of the amount covered by the cheque, within a period of 15 days from the date of receipt of the said notice. The notice so issued, in

fact, had been received by the petitioner/accused on October 28, 1992. Despite receipt of such notice on the said date, the petitioner accused did

not comply with the demand made therein.

(c) Consequently, the respondent/complainant preferred a complaint on December 1, 1992, before the Judicial Magistrate No. III, Erode, and it

had been returned on the same date for the omission to mention the age of the accused, while making the return, no time limit had been prescribed

for the rectification of the omission or the defect, for which the return had been effected.

(d) Ultimately, the respondent/complainant, after the rectification of the defect pointed out by the court, re-presented the complaint on September

14, 1993, that is to say, after a lapse of nearly nine months, and the complaint so filed had been taken on file and process issued to the

petitioner/accused.

On receipt of process, the petitioner/accused resorted to the present action u/s 482 of the Code of Criminal Procedure, 1973, to quash the

criminal proceedings initiated against him in the aforesaid calendar case.

He also filed Crl. M.P. No. 9223 of 1993, praying for stay of all further proceedings in the said calendar case, and this court on December 16,

1993, passed an order as below :

Interim stay for six weeks and notice returnable by then"".

The interim stay so granted had been extended time and again for specified periods and ultimately on March 28, 1994, the interim stay granted

had been extended until further orders.

Mr. V. K. Muthusami, learned counsel for the petitioner, would press into service the sole and lone point for consideration, viz., that the

representation of the complaint on September 14, 1993, is clearly barred by time, pursuant to the salient provisions adumbrated in sub-clause (b)

of section 142 of the Act.

Process in this action to the respondent had not been served and consequently he had not entered appearance, through a counsel of his choice.

Despite non-service of process on the respondent, learned counsel for the petitioner was requested to make his submissions in order to see, as

to whether the submissions so urged, if considered and decided, could cause any prejudice to the respondent, in his absence before court,

represented by a counsel of his choice. Learned counsel for the petitioner also readily agreed and made his submissions.

The statutory notice, as adverted to earlier, had admittedly been issued on October 24, 1992, and the said notice had been received on

October 28, 1992. The compliance of the said notice is required to be made within a period of 15 days, pursuant to the salient provisions

adumbrated u/s 138(c) of the Act. If compliance is not made within the said period limited therein, cause of action arises for launching of

prosecution and the cause of action so accrued enures in favour of the payee/holder in due course/complainant for a period of one month as had

been prescribed by section 142(b) of the Act. The statutory notice having been received on October 28, 1992, the compliance of such a notice is

required to be done within 15 days thereof, that is to say, on or before November 13, 1992. Admittedly, in the case on hand before the said

targeted date, no compliance had been made. In such state of affairs, it goes without saying that the cause of action arises on and from November

14, 1992, and the cause of action so accrued, enures to the benefit of the payee/holder in due course/complainant for a period of one month, that

is, to say, up to December 13, 1992. In the case on hand, as adverted to earlier, admittedly the complaint had been made before the Judicial

Magistrate No. III, Erode, on December 1, 1992, that is, very well within a period of one month from the date of receipt of the statutory notice.

What learned counsel for the petitioner would complain of in this case is that the complaint had not been taken on file on December 1, 1992, the

date of initial presentation, which had been made very well within the period of limitation, but what had been done is that the complaint had been

taken on file on September 14, 1993, the date of representation, long subsequent to the period of limitation of one month as contemplated u/s

142(b) of the Act.

No doubt, the submission so made appears to be very attractive on the face of it. The untenability of taking shelter therein would get exposed, if

a little probe is made in testing such a submission in the light of the language couched in section 142(b) of the Act, which reads as under :

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 u/s 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;

(c) .....

Before considering the effect of the language couched in prescribing the period of limitation for the launching of prosecution u/s 138 read with

section 142 of the Act in the said sub-section, as extracted above, an analogous provision available in the Code of Criminal Procedure, 1973, may

be referred to, in order to understand the significance of the sanguine provisions contained in section 142(2) of the Act.

Chapter XXXVI of the Code of Criminal Procedure, 1973, captioned as ""limitation for taking cognizance of certain offences"" consists of seven

sections, viz., sections 467 to 473 of the Criminal Procedure Code, 1973, (a) Section 467 is a definition section, which prescribes that unless the

context otherwise requires, ""period of limitation"" means the period specified in section 468, for taking cognizance of an offence. (b) Section 468

deals with the procedure to take cognizance after the lapse of the period of limitation.

Sub-section (1) thereof provides that except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the

category specified in sub-section (2), after the expiry of the period of limitation.

Sub-section (2) further provides that the period of limitation shall be - (a) six months, if the offence is punishable with fine only; (b) one year, if the

offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term

exceeding one year, but not exceeding three years.

Sub-section (3) states that for the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be

determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

(c) Section 469 deals with commencement of the period of limitation.

(d) Section 470 makes provision for exclusion of time in certain cases.

(e) Section 471 makes provision for exclusion of date on which the court is closed.

(f) Section 472 provides for computing the period of limitation in the case of continuing offences.

(g) Ultimately section 473 provides for extension of the period of limitation in certain cases.

From what has been stated above, it is apparently clear that the bar contemplated must be correlated to taking cognizance of an offence by court.

But, if the attention is turned to the salient provisions adumbrated u/s 142(b) of the Act, the bar contemplated therein is not correlated to taking

cognizance of an offence by court. But, what is stated therein is that the complaint has to be made within a period of one month from the date of

accrual of the cause of action.

(ii) Pertinent it is at this juncture to point out that the Negotiable Instruments Act, 1881, is a special law as defined by section 41 of the Indian

Penal Code, 1860. The general law, viz., the Code of Criminal Procedure, contains provisions relatable to procedural aspects as well as limitation

aspects. The special law like the Negotiable Instruments Act also contains provisions relatable to procedural aspects and limitation aspects in

respect of complaints filed before the court.

(iii) What then is the effect of the provisions contained in the special law like the Negotiable Instruments Act, and the general law, viz., the Code of

Criminal Procedure ? The answer to such a question is capable of being decided with ease and grace, by a conjoint reading of the provisions

adumbrated under sections 4 and 5 of the Code of Criminal Procedure, 1973, as well as the special provision made in the shape of section 142 of

the Negotiable Instruments Act, 1881, a special law.

(a) Section 4 of the Code of Criminal Procedure, deals with the trial of offences under the Indian Penal Code and other laws. Sub-section (1)

thereof prescribes that all offences under the Indian Penal Code (45 of 1860), shall be investigated, inquired into, tried, and otherwise dealt with

according to the provisions contained thereunder.

Sub-section (2) thereof provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according

to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying

or otherwise dealing with such offences.

(b) Section 5 of the Criminal Procedure Code, deals with savings. That section provides that nothing contained in the Code shall, in the absence of

a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any

special form of procedure prescribed, by any other law for the time being in force.

Section 142 of the Act, dealing with cognizance of offences, starts with a non-obstante clause, viz., ""notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974)"". By such non-obstante clause, the procedure, relatable to taking cognizance and limitation, as had

been dealt with by the Code of Criminal Procedure, had been excluded to the limited extent of the provision having been made while allowing the

Code of Criminal Procedure, to have a sway in respect of other matters in the trial of such an offence before a court of law. The exclusion that had

been contemplated u/s 142 of the Act is that a complaint is required to be made in writing, whereas under the Code of Criminal Procedure, the

complaint need not necessarily be made in writing and it can be made orally also, pursuant to the provisions contained in section 2(d) of the Code

of Criminal Procedure. The period of limitation of one month is not correlated to the taking of cognizance of the offence by the court, as had been

provided for under the Code of Criminal Procedure. But, what is required to be done in the case of cognizance of an offence u/s 142 of the Act is

that the complaint has to be made within a period of one month from the date on which the cause of action arises under clause (c) of the proviso to

section 138. Such being the case, the procedural aspects of limitation, as respects taking cognizance of offences, as had been provided for under

the Code of Criminal Procedure, has to be excluded to the limited extent to which specific provision has been made in section 142 of the Act.

In the instant case, the complaint had been initially presented admittedly on December 1, 1992, and on the said date, the court of the Judicial

Magistrate No. III, Erode, before which such presentation had been made, returned the said complaint for the omission made in not mentioning the

age of the accused in the complaint. While making the return, the court did not specify any time limit at all within which the return made, had to be

complied with. There is no specific provision available either in the Code of Criminal Procedure or in the Criminal Rules of Practice or in the

special law like the Negotiable Instruments Act as to the return to be made for rectification of defects in the, complaint presented before court.

But, nonetheless once the power inheres in favour of the court to receive a complaint, it goes without saying that the power to receive a complaint

must imply in itself the power to return it for rectification of the defects, if any, noticed. Once initial presentation of the complaint is made, within

time, and return, if any, made for rectification, of the defects prescribing the time within which the defects are to be rectified, then it goes without

saying that the complaint so returned, shall be deemed to be within the custody of the court. If the return is complied with within the time granted

by the court, to say then, that on the date of re-presentation, the limitation period prescribed had been expired, cannot at all be acceded to

inasmuch as the initial presentation had been made within the period prescribed under the statute and during the period of return, the complaint

shall also be deemed to be within the custody of the court. No doubt in the case on hand, the duty cast upon the court while making the return to

specify the period within which the return made for rectification of the defect has to be complied with, had not been duly discharged by specifying

the time limit within which the defects had to be complied with. Taking advantage of such a situation, the complaint had been represented as stated

earlier on September 14, 1993, after a lapse of nearly nine months. For the default of the court, there shall be no prejudice being caused to the

cause of justice and to put it otherwise, an act of court should prejudice none and this principle is expressed in the Latin Maxim ""actus curiae

neminem gravabit"".

For the above reasons, the criminal original petition deserves to be dismissed and the same is accordingly dismissed .The criminal

miscellaneous petition is also dismissed.