Dillip Kumar Patra and Another vs Jayanta Kumar Mohanty

B.P. Das, J.—This application u/s 482, Cr.P.C. is directed against an order dated 30.6.2000 passed by the learned J.M.F.C. (R), Cuttack in I.C.C. No. 24 of 1999 with a prayer to recall the order of taking cognizance in the said complaint case.

The fact giving rise to this revision application as narrated tends to reveal that the opposite party instituted a complaint case which was registered as I.C.C. No. 10 of 1998 against the present petitioners for the offence u/s 138 of the Negotiable Instruments Act and in the said case cognizance of the aforesaid offence was taken by the order of the learned Magistrate dated 20.2.1998. But the same was dismissed on 17.4.1999 u/s 204(4), Cr.P.C. as the complainant was absent and failed to file fresh requisites. Thereafter another complaint was Filed on 7.5.1999 on the self-same allegation and basing upon the same dishonoured cheque, which was registered as I.C.C. No. 24 of 1999 and cognizance was taken u/s 138 of the Negotiable Instruments Act. As it appears from the narration made in the complaint petition that the present petitioners issued a cheque on 6.9.1997 for an amount of Rs. 77,755.26 paise which was presented by the opposite party through his banker for collection but the same was returned to the complainant vide memo dated 15.9.1997 and received by the complainant on 13.11.1997. Thereafter notices were issued by the complainant to the petitioners on 27.11.1997 which were received by them on 18.12.1997. Since the amount was not paid, a complaint case was filed which was within the time specified and within the period of limitation so prescribed by the statute. The same was registered as I.C.C. No. 10 of 1998. According to the learned Counsel for the petitioners after the dismissal of the first complaint, a second complaint on the self-same ground, self-same allegation and self-same cause of action is not maintainable. According to him the cognizance so taken by the Magistrate for the offences u/s 138 of the Negotiable Instruments Act is illegal the reason being that the second complaint has been filed beyond the period of limitation and in contravention of the statutory provision incorporated under Sections 138 and 142 of the Negotiable Instruments Act.

According to Mr. Mishra, the learned Counsel for opposite party, the initial complaint so filed was not adjudicated on merit and it wasdismissed on technical grounds like not taking steps for filing the requisites and without moving the higher Court against the said order and without filing an application before the said Court for restoration of the complaint, a second complaint was filed which is maintainable. According to him, the limitation is not applicable as because the present complaint petition was dismissed without any adjudication and there is no bar under the Cr.P.C. for filing a second complaint. To fortify his argument, learned Counsel for the petitioner pressed into service a decision of the Apex Court in the case of Jatinder Singh and Ors. v. Ranjit Kaur I (2001) SLT 572 =1 (2001) CCR 181 (SC) = (2001) 20 OCR (SC) 374 wherein the Apex Court held that when a Magistrate conducts an inquiry u/s 202, Cr.P.C. and dismisses the complaint on merit, a second complaint on the same facts can only be made under very exceptional circumstances.

The case so cited above is that a proceeding is under Sections 494 and 109 of the Indian Penal Code in which an inquiry was conducted u/s 202, Cr.P.C. and the same was dismissed as the complainant was not present inside the Court when the case was called and a second complaint was filed in which the cognizance was taken. Considering the facts and circumstances of this case, the Apex Court held that there is no provision in the Code or any other statute which debars a complainant from preferring a second complaint on the same allegations if the first did not result in conviction, acquittal on discharge and ultimately came to a conclusion that a second complaint on the same facts can only be made under very exceptional circumstances. Even so a second complaint is permissible depending upon how the complaint happens to be dismissed at the first instance.

The reliance was also placed on a decision in the case of Mohammad Ilyas Ahamed v. Abdul Subhan 2001 C.L.J. 2821 wherein a complaint u/s 138 of the Negotiable Instruments Act was dismissed for default and immediately after the dismissal, the Counsel for the complainant made his appearance and requested the Court to recall the order of dismissal. That application was allowed and ultimately it was challenged before the High Court and it was held that when the complaint is once dismissed for default, the Magistrate becomes functus officio and he has no inherent power to restore the same. At the same time the High Court held mat u/s 482, Cr.P.C., the High Court is not merely guided by the technicalities, in order to achieve the ends of justice. The Court has discretionary power to enquire into the facts and by any valid excusable reason the petitioners'' absence is explained on equitable considerations, relief u/s 482, Cr.P.C. can be granted. Ultimately the Karnataka High Court held that for an offence u/s 138 of Negotiable Instruments Act, there is no remedy available for the complainant to file a second complaint when dismissed for default in view of the limitations prescribed and for restoration of the complaint case.

The facts narrated in the case decided by the Karnataka High Court are totally different from this case. Here the petitioner has not filed any application for restoration. At this juncture, it is profitable to quote the provision of Section 142 of the Negotiable Instruments Act.

"142. Cognisance of offences-

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no Court shall take cognisance 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) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall by any offence punishable u/s 138."

As it would appear that acomplaint shall be filed within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138, Clause (c) proviso to Section 138 of the N.I. Act speaks as follows :

"(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may he, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

The non obstante clause in Section 142 of the Negotiable Instruments Act makes it clear that the provisions contained in Section 142 have overriding effect on the provisions of the Code of Criminal Procedure.

That apart the decision of the Apex Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar 7 (1998) SLT 157 = 111 (1998) CCR 238 (SC) = I (1999) BC 691 (SCX1998) 15 OCR (SC) 372 held that-

"Besides the language of Sections 138 and 142 which clearly postulates only one cause of action there are other formidable impediments which negates the concept of successive causes of action. One of them is that for dishonour of one cheque there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with Clause (b) of the proviso to Section 138."

In the said judgment, it has been observed as follows :

"9. The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under Clause (c) of Section 142 otiose, for a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative Clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. Since in the interpretation of statutes the Court always presumes that the Legislature inserted every part thereof for a purpose and the legislative intention is that the every part should have effect, the above conclusion cannot be drawn for, that will make the provision for limiting the period of making the complaint nugatory."

In another decision, the Apex Court in the case of 5(7 Import, USA v. Exim Aides Silk Exporters, Bangalore I (2000) BC 668 (SC) = III (1999) CCR 15 (SC) = IV (1999) SLT 317 = 1999(11) OLR 354 held that-

"xxx If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act."

In view of the aforesaid judicial pronouncements on the subject specifically under the provision of the Negotiable Instruments Act, the decision relied upon by the learned Counsel for the opposite parties in the case of Jatinder Singh and Ors. v. Ranjit Kaur, (supra), is not applicable in view of the non obstante clause incorporated in Section 142 of the Negotiable Instruments Act as well as the period of limitation so prescribed under the provision of the Section 138 of N.I. Act.

Coming to the facts of the case at hand, the cause of action arose on 2.1.1998 and the complaint case bearing I.C.C. No. 10 of 1998 was filed within the time i.e. on 16.1.1998 which was dismissed for default on 17.4.1999, thereafter a subsequent complaint case which is the subject matter of this revision was filed on 7.5.1999. Once the complaint was dismissed, filing on second complaint can never postpone the period of limitation as well as the cause of action for which, in my considered opinion, the subsequent complaint bearing No. 24 of 1999 is not maintainable.

Accordingly, the impugned order taking cognizance and the proceeding in I.C.C. No. 24 of 1999 pending in the file of learned J.M.F.C. (R), Cuttack are quashed.