M/s. Plywood House and Another vs M/s. Wood Craft Products Ltd. and Another

K.T. Thomas J.

Petitioner is a firm. On the strength of some cheques said to have been issued by the petitioner-firm two complaints have been filed against the managing partner of the firm for the offence u/s 138 of the Negotiable instruments Act (for short, the Act). First complaint was filed on 23-11-1991 and the other was filed on 23-11-1991. Managing partner of the firm, after entering appearance, raised a contention in the lower court that prosecution against him is not maintainable as the firm which drew the cheques was not made an accused in the complaints. On 6-11-1992 the complainant filed a petition in each case praying for impleading the firm as additional accused. Though the petitions were stoutly resisted the Chief Judicial Magistrate before whom the complaints were filed, allowed the petitions by the impugned order. Two main contentions have been advanced by the learned counsel for quashing the order. First is that since there is no provision in the Act for impleading a new accused in the case, the court cannot make recourse to the general provisions contained in the Code of Criminal Procedure (for short the code). Even otherwise Section 142 of the Act makes it clear that prosecution proceedings contemplated therein are either untrammelled or unaided by anything contained in the Code, contended the counsel. The second contention is that the court is debarred from taking cognizance of the offence against the firm after the expiry of the period of one month from the date of cause of action envisaged in Clause (c) of Section 138 of the Act, and hence the firm cannot be impleaded after the said period.

Section 142 of the Act reads as follows :

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) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable u/s 138.

Section 4 (2) of the Code requires that all offences under any law, other than the Indian Penal Code, shall also be enquired into or tried and otherwise dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The non-obstante clause in Section 142 of the Act, is intended to make it clear that the three matters specified in the Section have over - riding effect on the provisions of the Code. The clause does not keep the provisions of the Code away from trial or inquiry into the offence u/s 138 of the Act as for all other purposes. All that Sec. 142 restricts is that in taking cognizance of the offence u/s 138 a written complaint (made by either the payee or holder in due course) within one month of the cause of action envisaged in clause (c) of the Section is sine qua non, whatever be the provisions in the Code. The contention that the non - obstante clause in Section 142 is intended to sweep out all the provisions of the Code bell, book, and candle is therefore unsound and unsustainable.

The second contention seems to be based on the erroneous premise that cognizance taken is against the offender and not of the offence. The prohibition in Section 142 stretches only to the taking cognizance of any offence. It is now well settled that a court takes cognizance only of the offence and not of any offender. It was pointed out by the Supreme Court in Raghubans Dubey Vs. State of Bihar, that "once cognizance has been taken by the Magistrate, he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons." A division bench of this Court has followed the said legal position in Asokan v. Narayanan & others (1972 KLT 728). Subsequently the Supreme Court reiterated it in Hareram Satpathy Vs. Tikaram Agarwala and Others, .

Thus the legal position is, when once cognizance of the offence was taken, subsequent impleadment of any other person as accused would not affect the judicial process already adopted in taking cognizance of the offence. In the aforesaid context, a reference to Section 319 of the Code is necessary. Under sub-section (1) the court is given power to proceed against any other person who appears to have committed any offence for which such person could be tried together with the accused already arraigned in the case. Once the court decides to proceed against such other person then sub Sec. (4) will save the earlier act of taking cognizance of the offence. Sub-section (4) says that "the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced" Hence the stage at which the new accused was brought in the array of the accused has no legal impact on the proceedings.

In the result I dismiss both Criminal Miscellaneous cases in limine.