Satish Kumar Goenka vs S.R.K. Mohan and another

P.K. Mohanty, J.—The petitioner in both the criminal revisions being common and the question of law involved in similar, with the consent of the learned counsel for the parties, they are heard together and disposed of by this common judgment.

The petitioner assails the orders of the learned Sub-divisional Judicial Magistrate, Sadar, Cuttack dated 3-9-96 dismissing his applications u/s 5 of the Limitation Act filed along with the complaints u/s 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''N. I. Act'').

The petitioner filed two complaint petitions u/s 138 of the N. I. Act in the Court of the S. D. J. M. (S), Cuttack the cheques issued by the opp. party No. 1 having been dishonoured and in spite of notice, no payment having been made as against the dishonoured cheques. It is not disputed that the complaint petitions were filed beyond one month after the expiry of a period of 15 days of notice u/s 138 of the N. I. Act He filed applications u/s 5 of the Limitation Act supported by a certificate from the doctor of his illness. The learned S. D. J. M. after bearing the applications u/s 5, has dismissed such petitions and consequently the complaint petitions. The present criminal revisions are filed against the orders passed by the learned Magistrate dated 3-9-96 in two separate complaints.

In course of heating of the cases, Mr. S. C. Lal, learned Advocate was requested to address the Court as Amicus Curiae and accordingly he has addressed on the question of law along with the learned counsel for the petitioner and the learned counsel for the opposite parties.

The question that is raised for consideration is as to whether the provisions of section 5 of the Limitation Act is applicable to a complaint filed u/s 138 of the N. I. Act beyond the period of limitation of one month provided under sub-section (b) of section 142 of the N. I. Act and if the same is applicable whether there was sufficient cause for condoning the delay.

The Negotiable Instruments Act is a special statute and Chapter-XVII thereof makes provision for punishment for the failure to make payment of the amount of money to a payee towards the bounced cheque. Section 142 of the said Act provides for taking cognizance of the offence and sub-section (b) of section 142 provides a period of one month as the period of limitation for filing of complaint from the date on which cause of action arises under clause-(c) of the proviso to section 138 of the N. I. Act. There is no provision for extending the period of limitation u/s 142 of the Act. Now, therefore, the question for consideration is whether in view of section 29(2) of the Limitation Act, the provisions of section 5 can be made applicable to such a complaint.

Section 29(2) of the Limitation Act provides that for the purpose of determining any period of limitation prescribed for suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply, in so far and to the extent to which they are not expressly excluded by such special or local law.

The word ''complaint'' has been defined in section 2(d) of the Code of Criminal Procedure which reads thus :

"2. Definitions :

In this Code; unless the context otherwise requires''.-

(a) to (c) xx xx xx (d) ''Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under, this Code, that some person, whether known or unknown has committed an offence, but does not include a police report."

Under sub-section (b) of section 2 of the Limitation Act, an application included a petition. Section 142(a) of the N. I. Act provides that 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. Thus, a complaint is to be made by way of a petition which includes the application as contemplated u/s 29(2) of the Limitation Act. The application under the provisions of the Limitation Act has not been specifically excluded or prohibited in the N. I. Act. In terms of section 29(2) of the Limitation Act it can be made applicable to a special statute like N. I. Act in absence of any prohibition. Accordingly, section 5 of the Limitation Act is applicable to a complaint u/s 138 of the N. I. Act to extend the period of limitation subject, of course, to the condition that the complainant satisfies the court that he has sufficient cause for not preferring the complaint within the period of limitation prescribed under subsection (b) of section 142 of the N. I. Act.

Shri Lal appearing as Amicus Curiae has brought to the notice of the Court the decision of the Apes Court in the case of M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, and submits that if no complaint is filed within one month after expiry of the period of 15 day''s of the notice for making payment as against the dishonoured cheque, the payee would stand forbidden from launching a prosecution thereafter in terms of sub-section (b) of section 142 of the Act. But, however, the applicability of section 5 of the Limitation Act, in terms of section 29(2) thereof was not considered in the said decision. A further reference has been made to the decision of the Apex Court in the case of M/s. Saketh India Limited and others Vs. M/s. India Securities Limited, wherein the Hon''ble Apex Court while considering computation of the period of one month for filing of the complaint, applied and took note of section 12 (1) and (2) of the Limitation Act, A reference has also been made to the decision of this Court in the case of Janardhan Mohapatra Vs. Saroj Kumar Choudhury, therein while dealing with the matter exhaustively, Hon''ble S. C. Mohapatra, J. as his Lordship then was held that section 5 of the Limitation Act is applicable to a complaint u/s 138 of the N. I. Act.

In view of the analysis earlier I am in respectful agreement with the view expressed in the case of Janardhan Mohapatra (supra). In that view of the matter, I am of the considered opinion that section 5 of the Limitation Act applies to a complaint filed u/s 138 of the N. I. Act and if the court is satisfied that there was sufficient cause for not filing the complaint within the time prescribed under sub-section (b) of section 142, the period of limitation can be extended and the delay in filing a complaint can be condoned.

Now the question arises as to whether the learned Magistrate has rightly dismissed the petitions filed u/s 5 of the Limitation Act for condonation of delay in filing the complaint u/s 138 of the N. I. Act, It appears that delay has not been condoned mainly on the ground that the limitation petition did not contain the date or the period during which the complainant was ill, nature of illness or disease and the name of the physician or the doctor under whom the petitioner was under treatment. A certificate from the doctor, however, was filed indicating that the petitioner was under the treatment from 4-5-96 to 23-8-96 for CH.D.ULCER and during that period the petitioner was advised complete rest. The learned Magistrate has observed that apart from the medical certificate, there is no other document concerning the illness or treatment of the complainant and therefore, reliance cannot be placed on the medical certificate only. The learned Magistrate, however, has observed that the ground of illness is not at all sufficient to condone the delay. It appears that the total issue has been confused. The learned Magistrate was required to see as to whether the petitioner was prevented by sufficient cause from taking steps and filing the complaint within the period of limitation. Applications for limitation have been filed inasmuch as a medical certificate was produced and therefore, the learned Magistrate ought to have considered whether the medical certificate and the plea as contemplated in the petition u/s 5 of the Limitation Act was acceptable and whether that constitute a sufficient cause for not filing the complaint in time in terms of section 5 of the Act. I find that the learned Magistrate apart from the medical certificate required some more documents concerning illness and treatment and therefore, did not place any reliance on the medical certificate only. It appears that no evidence has been led on that score.

In the peculiar facts and circumstances of the case I am of the considered opinion that the matter should be remitted back to the learned Magistrate for considering the petition for condonation of delay in its proper perspective in accordance with law and therefore, the orders dated 3-9-96 impugned in both the revisions are set aside and the learned Magistrate is directed to consider the applications of the petitioner filed u/s 5 of the Limitation Act afresh in accordance with law without being influenced by any observation made herein, on its own merit on which I express no opinion. On consideration of the applications for condonation of delay in filing the complaint, if the learned Magistrate finds sufficient cause and decides to condone the delay then he shall proceed to consider the complaint u/s 138 of the N. I. Act in accordance with law thereafter. Since the matter is delayed, the learned Magistrate shall expedite the matter and the parties shall co-operate in such expeditious disposal.

In the result, the revisions are allowed and the impugned orders are set aside on the above terms.

Revisions allowed.