Mahadev vs Sachin and Others

I.K. Jain, J—This Application is preferred by the applicant (original accused) challenging the judgment and order passed in Criminal Revision Application No. 108/2004 by learned Additional Sessions Judge, Buldana on 15th December, 2009 setting aside the common order passed on Exhs. 31 and 41 in Regular Criminal Case No. 47/2003 as well as the consequential order below Exh. 1 of disposal of said Regular Criminal Case. 2. Factual matrix which can be summarized, is as under:

That, non-applicant No. 1 filed complainant against applicant Mahadev for the offences punishable under Sections 138 of the Negotiable Instruments Act, 1881 (for short "N.I. Act") and 420 of the Indian Penal Code (in short "I.P.C."). The learned Magistrate took cognizance of offence under Section 138 of the N.I. Act for dishonour of cheque and in consequence thereof process was issued against applicant Mahadev.

Then accused filed Applications for discharge at Exh. 31 and for recalling of process at Exh. 41. On hearing parties, learned Magistrate recalled the order of issuance of process on the ground that complaint was barred by limitation and disposed of criminal proceeding under Section 138 of the N.I. Act.

Being aggrieved, complainant preferred Revision Application before the Sessions Court, Buldana. The learned Additional Sessions judge held that the order of recalling of process was not in accordance with the settled legal propositions and further point of limitation was decided by the learned Magistrate without giving an opportunity of hearing to the complainant. The learned Additional Sessions, while setting aside the orders passed by learned Magistrate, issued certain directions including one to consider the point of limitation, if any, raised at the time of final hearing of the matter.

Being dissatisfied with the impugned order passed in the Revision Application, original accused has challenged the same before this Court under Section 482 of the Code of Criminal Procedure.

Heard extensively Mr. R.J. Shinde, learned counsel for applicant and Mr. A.J. Thakkar, learned counsel for non-applicant No. 1.

Learned counsel for applicant submitted that question of limitation is a pure question of law and the same can be raised at any stage of proceeding. It is submitted that complaint u/s. 138 was apparently barred by limitation and referring to various relevant dates demonstrated by complainant, the learned Magistrate came to the conclusion that complaint was barred by limitation and rightly dismissed the same.

It is further submitted that the order of recalling of process was in accordance with the legal position then prevailing and the learned Addl. Sessions Judge committed grave error of law by setting a side the said order.

Per contra, learned counsel for non-applicant No. 1 referred to the applications Exhs. 31 and 41 and submitted that there is no whisper in both the applications regarding issue of limitation. It is then submitted that complainant was denied a fair opportunity to explain the cause of delay. No legal reasons were assigned by the learned Magistrate for denying such an opportunity to the complainant. Learned counsel also submitted that the order passed by learned Magistrate were palpably wrong and the revisional Court has rightly set aside the same.

On perusal of order passed by the learned Addl. Sessions Judge it can be seen that on two grounds order passed by learned Magistrate came to be interfered. (i) That the order of recalling process was in the absence of any specific provision and against the proposition of law laid down by the Hon''ble Supreme Court in Adalat Parsad vs. Ruplal Jindal and others (AIR 2004 SC 4674) and the subsequent decisions and (ii) An opportunity of hearing was denied to the complainant before arriving at the conclusion that complaint was barred by limitation.

It can be seen from applications Exh. 31 and 41 that accused never raised point of limitation in the applications. It is true that law is not to be pleaded. But opportunity of hearing in any case was required to be given. There is no whisper in the order passed by learned Magistrate that an opportunity of hearing was given to the complainant before dismissing the complaint being barred by limitation.

It takes this Court to Section 142 of the N.I. Act. It deals with cognizance of offences and 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 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 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:

({Provided that the cognizance of a complaint 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;}

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."

The above proviso is self-speaking to show that cognizance of complaint even if it is barred by limitation can be taken by the Court after the prescribed period if complainant satisfies that he had sufficient cause for not making a complaint within a period referred in clause (b) of Section 142 of the N.I. Act.

In the present case, from Exhs. 31, 41 and the orders passed by the learned Magistrate, it is not clear that complainant was heard on the point of limitation. If an opportunity of hearing would have been given to complainant it was open for him to satisfy the Court that he had sufficient cause for not making a complaint within the time prescribed.

In respect to recalling of process the revisional Court has elaborately recorded the reasons in consonance with the legal propositions and so it cannot be said that the order is either perverse or illegal, as contended by the applicant.

In the result, Criminal Application is found devoid of substance. It stands dismissed. Rule discharged.