Rameshwar Lal @ Ramesh vs Ram Niwas Singania and Another

H.R. Panwar, J.—This Criminal misc. petition u/s 482 Cr.P.C. is directed against the order dt. 19.01.2007 passed by learned Sessions Judge, Bikaner (for short the ''the revisional Court'' hereinafter) whereby the revision petition filed by the respondent No. 1 Ram Niwas Singania against the order dt. 09.11.2005 passed by Additional Chief Judicial Magistrate No. 2, Bikaner (for short ''the trial Court'' hereinafter) was allowed and the order dt. 09.11.2005 passed by the trial Court came to be set aside and the accused respondent No. 1 Ram Niwas Singania was discharged of the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act'' hereinafter).

I have heard learned Counsel for the parties. Carefully gone through the order of the trial Court as well as the revisional Court as also the record of the Courts below.

From the record, it appears that a complaint was filed by the petitioner u/s 138 of the Act against the respondent No. 1 before the trial Court on 05.12.2003. By order dt. 12.02.2004, the trial Court took the cognizance of the offence u/s 138 of the Act and issued the process. In pursuance thereof, the accused respondent appeared before the trial Court and was released on bail. During trial of the case, an application was moved by the accused respondent on 17.08.2004 raising objection to the order taking cognizance contending therein that the order taking cognizance is barred by period of limitation. That application came to be dismissed by the trial Court and in my view rightly so in view of the Three Judges Bench decision of Hon''ble Supreme Court In Adalat Prasad Vs. Rooplal Jindal and Others, as also in Subramanium Sethuraman Vs. State of Maharashtra and Another, However, that order came to be challenged by way of revision and the revisional Court allowed the revision and remanded the matter back to the trial Court to rehear and decide the question of limitation. By order dt. 09.11.2005, the trial Court again dismissed the application field by accused respondent justifying the condonation of the delay of 5-6 days in filing the complaint. That order came to be challenged by the accused by way of revision being Criminal Revision No. 208/05 and the revisional Court set aside the order of the trial Court dt. 09.11.2005. Hence this criminal misc. petition.

It is contended by learned Counsel for the petitioner that the trial Court is empowered to condone the delay in filing the complaint in view of proviso to Section 142(b) of the Act which provides 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 and the said proviso came to be inserted u/s 142 of the Act by Act 55 of 2002 w.e.f. 06.02.2003. In the instant case, the cause of action to file the complaint was accrued to the petitioner on dishonour of the cheque issued by the accused respondent in his favour and after notice to the accused on his failure to pay the cheque amount within the period of limitation by end of October, 2003 and therefore, the proviso to Section 142(b) of the Act fully applied to the present case.

I have carefully gone through the complaint filed by the petitioner against accused respondent. The complaint came to be filed on 05.12.2003 and the averments made in the complaint clearly goes to show that four cheques were issued by the accused respondent on 17.03.2003, 31.03.2003, 17.04.2003 and 30.04.2003 which have presented to the bank and returned unpaid on 01.10.2003 with the endorsement that the amount in the account of holder is insufficient to honour the cheques and thus remained unpaid for want to sufficient fund. A registered notice was issued on 14.10.2003 demanding the cheques amount. Despite registered notice having been received by the accused, he failed to pay the cheques amount and thus the cause of action accrued on the expiry of notice period for paying the cheques amount and therefore, in my view, proviso to Section 142(b) of the Act empowers the trial Magistrate to take cognizance on complaint, on the complainant satisfying the Court showing sufficient cause for not making the complaint within the period prescribed. The delay was of 5-6 days. The revisional Court has not considered these provisions and set aside the order of the trial Magistrate. In my view, the trial Magistrate was justified in condoning the delay of 5-6 days in making complaint and taking the cognizance. Even the earlier order of the revisional Court remanding the matter was bad in law in view of the decisions of Hon''ble Supreme Court referred hereinabove. After taking cognizance, the trial Court had no jurisdiction to review or recall its order. Be that as it may, the order impugned cannot sustain and is liable to be set aside.

Consequently, the criminal misc. petition is allowed. The order impugned dt. 19.01.2007 passed by Session Judge, Bikaner in Criminal Revision No. 208/05 is hereby set aside and the order passed by Additional Chief Judicial Magistrate No. 2, Bikaner dt. 09.11.2005 is restored. Criminal proceeding against the accused respondent is restored. The trial Court shall proceed with the trial of the case by procuring the presence of the accused respondent. The record of the Courts below the returned forthwith.