Sanjay Sharma vs Avdesh Sharma

D.K. Paliwal, J.—With the consent of parties, matter is heard finally. The petitioner has preferred this petition u/s 482 of Cr.P.C. for quashing the order passed by Sessions Judge, Bhind in Cri. Revision No. 86/2013, whereby order passed by C.J.M., Bhind in Cri. Case No. 142/2013 taking cognizance against the petitioner for the offence punishable u/s 138 of Negotiable Instruments Act has been affirmed and the revision petition preferred by the petitioner has been dismissed. The facts in brief are that non-applicant has filed a private complaint u/s 138 of Negotiable Instruments Act alleging that petitioner/accused has taken Rs. 1,20,000/- from him and issued a cheque No. 219752 dated 2.6.2012 of Rs. 1,20,000/-. When the complainant submitted the cheque for encashment it was returned back. Thereafter, a notice was sent on 11.9.2012. Petitioner failed to make the payment. It was also stated that since the complaint had been filed after lapse of prescribed period an application u/s 5 of Limitation Act has also been submitted for condoning the delay. The learned Chief Judicial Magistrate had condoned the delay in filing the private complaint and taken cognizance u/s 138 of Negotiable Instruments Act vide order dated 10.12.2012 being aggrieved petitioner knocked the door of Sessions Judge, Bhind by preferring Cri. Revision No. 86/2013, which has been dismissed. Being aggrieved this petition u/s 482 of Cr.P.C. has been preferred.

It is contended that as per the complainant cheque was submitted on 31.8.2012. The same had been returned back on 8.9.2012. A notice was sent on 11.9.2012, therefore, complaint should have been filed up to 5.11.2012 but the complaint has filed on 30.11.2012. The learned trial Court has committed illegality in condoning the delay in filing the complaint because delay cannot be condoned u/s 142 of Negotiable Instruments Act. It is further submitted that as per the complainant the reason for delay in filing the complaint that the complainant became ill due to Malaria. However, no document for medical treatment has been filed, therefore, the delay could not be condoned.

Learned counsel for the non-applicant/complainant has supported the order passed by the learned Court below and submitted that there is no scope for exercise of the powers u/s 482 of Cr.P.C., hence prayed for dismissal of the petition.

The crucial question requires to be considered is whether delay in filing the complaint u/s 138 of the Negotiable Instruments Act can be condoned or not? Before proceeding to examine the issue it would be relevant to look into the provisions of Section 142 of the Negotiable Instruments 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;

[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 u/s 138.

It is significant to note that a proviso has been inserted after clause (b) by the Negotiable instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act No. 55 of 2002), w.e.f. 6.2.2003, which specifically provides that 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 the complaint within such period.

Thus, the contention of the learned counsel that the provision of Section 5 of Limitation Act are not applicable and delay in filing the complaint cannot be condoned is devoid of merits.

So far as the ground taken for condoning the delay in filing the complaint is concerned, from the perusal of Annexure P/1, it appears that it is specifically stated that complainant suddenly suffered by Malaria fever. He had taken Deshi treatment. The medical certificate has also been filed, which remained un-controverted. There is a delay of 28 days. Thus, the reason for delay has satisfactorily been explained by the complainant, therefore, the submission of the learned counsel for the petitioner that there was no document of medical treatment has no substance.

Learned counsel for the petitioner cited a judgment rendered in the matter of Tameeshwar Vaishnav Vs. Ramvishal Gupta, , wherein the Hon''ble Apex Court has held that complaints filed on the basis of second notices beyond period of limitation the Magistrate cannot take the cognizance. The facts of the instant case are distinguishable with the aforesaid case, because in the cited case first notice was duly served upon the accused but complainant did not take any steps to file the complaint within the period prescribed u/s 142 of the Negotiable Instruments Act. The complainant had sent a second notice to the accused and ultimately when no response was received he filed a complaint. In such circumstances it was held that the cognizance cannot be taken. In the instant case the facts are different hence, this citation is not applicable in the instant case. This Court in the matter of Girraj Patwa Vs. Dayaram, ILR [2008] M.P. 3355 has held that u/s 142 of the Negotiable Instruments Act learned Magistrate is empowered to condone the delay as per Proviso to clause (b) of section 142 of Negotiable Instruments Act, which came into force on 6.2.2003. In the case of Tulsiram Narwariya Vs. Mahesh Chandra, , there was a delay of 28 days in filing the complaint, this Court held that delay can be condoned and discretion has to be exercised to advance substantial justice.

In view of aforesaid discussion, in my considered opinion, learned Court below has rightly condoned the delay in filing the complaint. The petition is devoid of merits and deserves to be dismissed. Consequently, the petition stands dismissed.