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KIRAN JAIN versus KAMLA DEVI

High Court of Punjab and Haryana, Chandigarh

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KIRAN JAIN v. KAMLA DEVI - CRM-43571-M-2002 [2006] RD-P&H 4673 (24 July 2006)

Criminal Misc. No. 43571-M OF 2002 /1/

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Criminal Misc. No. 43571-M OF 2002

DATE OF DECISION : JULY 26, 2006

KIRAN JAIN ....... PETITIONER

VERSUS

KAMLA DEVI ...... RESPONDENT

CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. KS Bhullar, Advocate, for the petitioner.

Mr. Heman Aggarwal, Advocate, for respondent.

JUDGMENT :

The only issue that has been raised for consideration in this case is as to whether, once a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') is dismissed for want of prosecution, could subsequent complaint beyond limitation be entertained.

Petitioner-Kiran Jain is the accused in Criminal Complaint No.216 dated 2.12.2000 titled 'Kamla Devi v. Kiran Jain' instituted under Section 138 of the Act, pending in the Court of CJM, Mansa.

The facts that need to be considered for adjudicating upon the Criminal Misc. No. 43571-M OF 2002 /2/

above mentioned issue are that a cheque dated 4.5.2000 for a sum of Rs.

1,50,000/- was issued by the petitioner. That cheque having been dishonoured, a notice was issued to the petitioner on 17.5.2000. Payment was not made and, therefore, the offence having been completed, a criminal complaint was instituted on 1.7.2000 which, admittedly, was within the period prescribed under the provisions of Section 142(b) of the Act.

Thereafter, the respondent-complainant put in appearance on 18.7.2000 and 23.8.2000. However, on 15.11.2000, neither the complainant nor her counsel put in appearance and, therefore, the following order was passed:- "Present: None.

Complaint called repeatedly since morning. It is now 3-00 p.m. but none has appeared for the complainant.

Therefore, complaint is dismissed in default for want of prosecution. File be consigned to the record room.

Pronounced: sd/-

15.11.2000 Chief Judicial Magistrate,

Mansa."

After dismissal of the complaint, a fresh complaint bearing No.216 of 2.12.2000 (Annexure P-1) was filed. The complaint was filed on the basis of the same documents as of the earlier complaint bearing No.114 of 1.7.2000. Cognizance of the complaint was taken on 2.12.2000 itself and the complaint was directed to come up on 5.3.2001 for preliminary evidence of the complainant. On 5.3.2001, the statement of the complainant was recorded, who appeared as PW-1, but no document was produced in evidence nor any document was proved. No other witness was examined to corroborate the statement made by the complainant. Subsequently, it is pleaded in the petition that on 20.7.2001, statement of the complainant was Criminal Misc. No. 43571-M OF 2002 /3/

recorded without oath in which she tendered some documents without proving the same. Thereafter, order of summoning was passed on 17.9.2002.

It seems that at that stage, it was found that the complaint itself was barred by time and, therefore, oral arguments were addressed on behalf of the complainant while pleading for condonation of delay u/s 473, Cr.P.C.

Para-3 of the order of summoning is relevant in this context, which reads as under:-

"I have gone through the evidence on the record and contents of the complaint. By applying the law laid down by Hon'ble Supreme Court of India in Jatinder Singh & Ors. vs.

Ranjit Kaur 2000(1) Appex Court Journal 581, the second complaint on the same facts is well maintainable. Since the complaint was dismissed on 15.11.2000 and the present complainant came to know on 2.12.2000 about the dismissal of the complaint and complainant immediately filed the present complaint on 2.12.2000. Thus, according to this court, period falling between 1-7-2000 to 2-12-2000 is to be condoned under Section 473 Cr.P.C. Thus, on the basis of preliminary evidence, which remained unrebutted and further that cheque issued by the accused was dishonoured on the ground of insufficient funds, accused has prima facie committed offence under Section 138 of the Negotiable Instrument Act.

Accordingly, is ordered to be summoned for having committed offence under Section 138 of the Negotiable Instruments Act on filing the PR and copy of complaint for 22-10-2002." The petitioner, aggrieved by the order of summoning, has approached this Court.

The argument raised by the learned counsel for the petitioner is that in proceedings under the Act, delay cannot be condoned under Section 473, Cr.P.C. It has been stated that 'the Act' is a special Act with rigorous Criminal Misc. No. 43571-M OF 2002 /4/

provisions and their compliance is required specifically. Once the limitation is allowed to expire, a right is vested in the accused and such condonation of delay is even not contemplated under the Act, which is a complete Code in itself. It has been contended by the learned counsel that the provisions of Section 473, Cr.P.C., had to be read in conjunction with the provisions of Section 468, Cr.P.C. and, therefore, would have no application to the limitation stipulated under the Act, which is a special legislation. It has been, thus, argued that since the Act did not provide for condonation of delay, the provisions of Section 473 read with Section 468, Cr.P.C., cannot be read in the provisions of the Negotiable Instruments Act.

Learned counsel for the petitioner has further argued that no application for condonation of delay had been made. Without an application for condonation of delay, the delay could not have been condoned. The other objection that has been raised is that the trial Magistrate should have considered the issue of delay at the time of taking cognizance and not at the time of summoning. The limitation having expired, the trial Court had no jurisdiction to take cognizance of the complaint instituted after expiry of limitation as provided u/s 142(b) of the Act. A reference has been made to a number of judgments. However, I find that the judgments are either under general law or not relating to the Act and, therefore, are not being noticed. The judgments relevant for adjudicating upon the issue, as relied upon by the learned counsel for the petitioner, are Ram Bhaj Jain v. M/s Brar Rice and General Mills, 2003(1) PLR 493, decided by this Court, Shri Vishnu Spinners v. Sri Bhagyalakshmi Commercial Corporation, 1999(2) RCR (Criminal) 192 (AP) and Criminal Misc. No. 43571-M OF 2002 /5/

P.P.Unnikrishnan v. Puttiyottil Alikutty, 2000(4) RCR (Criminal) 25 (SC).

Learned counsel for the respondent, on the other hand, has argued that there were reasonable grounds for the respondent in not appearing on 15.11.2000 as the respondent-complainant had noted wrong date as 2.12.2000. When the respondent went to the Court and found that the matter had been dismissed for want of prosecution on 15.11.2000, the second complaint was filed the same day.

It has been specifically admitted by the learned counsel for the respondent that it is the case of the respondent that condonation of delay was asked for orally and no separate application was made. In that regard, reference has been made to para 5-A of the second complaint, wherein the reasons are contained. Learned counsel has further argued that since no revision was filed against the order of summoning, which includes the order of condonation of delay, the quashing petition is not maintainable and is liable to be dismissed.

Learned counsel for the respondent has relied on Nambhi Raj v.

Adarsh Diwan, 2004(1) RCR (Criminal) 978 (P&H) and Jatinder Singh v.

Ranjit Kaur, 2001(1) RCR (Criminal) 692 (SC). While relying on the case law, learned counsel for the respondent has pleaded that in Jatinder Singh's case (supra), the Hon'ble Supreme Court has held that once a criminal complaint is dismissed in default, without any reference to merits, second complaint on the same facts is maintainable. While referring to the case of Nambhi Raj (supra), it has been pleaded that this was a case under the Act and it has been held that once a complaint u/s 138 of the Act is dismissed in default, the Magistrate has the jurisdiction to restore the complaint on the Criminal Misc. No. 43571-M OF 2002 /6/

ground that the complaint was at the initial stage of summoning.

I have heard the learned counsel for the parties and have gone through the record with their assistance.

Relevant provisions are required to be reproduced for adjudication of the issue. Relevant provisions of the Act are reproduced as under:-

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless -

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the Criminal Misc. No. 43571-M OF 2002 /7/

cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation. - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

"142. 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.]

* Inserted by Act 55 of 2002, sec. 9 (w.,e.f. 6-2-2003).

(c) xx xx xx xx xx"

A perusal of the provisions reproduced above, shows that Chapter XVII of the Act is a complete Code. It provides for limitation in terms of days at every stage viz. The period within which the cheque is to be presented, the period within which the notice is required to be issued and the period within which the complaint is to be instituted, in case, in Criminal Misc. No. 43571-M OF 2002 /8/

response to the notice, the payment of the cheque amount is not made. The offence is complete when drawer of such cheque fails to make payment of the said amount of money to the payee within 15 days of the receipt of the notice issued under sub-section (c) of Section 138 of the Act. Once the offence is complete, under Section 142(b) of the Act, a complaint can be made within one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the Act.

It has been provided in the proviso to sub-section (b) of Section 142 of the Act 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. This proviso was introduced by Act No.55 of 202 w.e.f. 6.2.2003. The second complaint in this case was instituted on 2.12.2000 and the order of summoning was passed on 17.9.2002, therefore, the proviso to clause (b) of Section 142 of the Act would have no application to the case in hand.

A reference to the case law relied upon by the learned counsel for the petitioner, in Ram Bhaj Jain's case (supra), would show that the present case is covered by this judicial pronouncement. In that case also, the complaint which was under the Act, once dismissed in default, was again restored for the reasons given in the application viz. that the complainant was sick and was confined to bed and that there was no other male member for giving information to the Court. Therefore, it was pleaded that the absence of the complainant was not intentional. On this count and while considering certain judgments, the complaint was restored at its original number and stage and the accused were summoned. Order passed Criminal Misc. No. 43571-M OF 2002 /9/

by the Magistrate in the above circumstances was held as wholly without jurisdiction and was quashed by this Court.

So far as the case of P.P.Unnikrishnan (supra) is concerned, the Hon'ble Supreme Court was dealing with the provisions of Police Act (Kerala), which is a special legislation. While dealing with the provisions of the Code of Criminal Procedure, in particular Section 468 read in conjunction with Section 473, viz-a-viz the Special Act, it has been held, thus:-

"9. Section 473 of the Code is the last of the provisions subsumed in Chapter XXXVI of the Code. The title of the that Chapter is "Limitation for taking cognizance of certain offences." the Chapter contains a fasciculus of only seven sections starting with Section 467. It is necessary to extract that commencing provisions which is as under:- "467. Definitions. - For the purpose of this Chapter, unless the context otherwise requires, 'period of limitation' means the period specified in section 468 for taking cognizance of an offence."

10. It is clear from a reading of the said opening provision that the entire Chapter concerns only with the period of limitation prescribed in the succeeding provisions. Of course the usual play at the joints is provided therein by using the words "unless the context otherwise requires". But on reading Section 473 it would become crystally clear that it is intended to be applied only with reference to the period fixed in Section 468 of the Code. Now we extract below Section 473 of the Code :

"473. Extension of period of limitation in certain cases. - Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of Criminal Misc. No. 43571-M OF 2002 /10/

limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do in the interest of justice.

11. The extension of period contemplated in the said Section is only by way of an exception to the period fixed as per the provisions of Chapter XXXVI of the Code. Section 473 of the Code therefore cannot operate in respect of any period of limitation prescribed under any other enactment. Hence we are unable to uphold the view adopted by the learned Single Judge of the High Court that Section 473 of the Code can appropriately be invoked by the complainant for circumventing the bar contained in Section 64(3) of the K.P. Act." In the case of Shri Vishnu Spinners (supra), the Andhra Pradesh High Court was dealing with a case under the Act. An application u/s 5 of the Limitation Act was filed for condonation of delay. Finding that the complaint was not filed within the prescribed period u/s 142 of the Act, it was held that the delay cannot be condoned u/s 5 of the Limitation Act or even u/s 473, Cr.P.C., the Negotiable Instruments act being a special law which describes a special procedure and limitation. Reference may be made to the following observations:-

"3. The learned Magistrate misdirected himself to the whole question that arises for consideration. Chapter XVII of the Negotiable Instruments At, is a complete package consisting the provisions of Sections 138 to 142. The provisions are mandatory in their nature. Section 142 of the Act envisages that (a) notwithstanding anything contained in Criminal Procedure Code, 1973, no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing made by the payee (b) such complaint is made within one month of the date on which the cause of action Criminal Misc. No. 43571-M OF 2002 /11/

arise under Cl. (c) to proviso to Section 138(c) ...... Clause (c) of the proviso to Section 138 in turn envisages that there must be failure on the part of the drawer of the cheque to make the payment of the said amount of money to the payee within fifteen days of the receipt of the notice. Thus it is clear that the cause of action would arise only on the expiry of fifteen days of receipt of the notice by the drawer of cheque from the payee or the holder, as the case may be. Undoubtedly, these provisions are mandatory in nature. The package in Chapter XVII deals with penalties in case of dishonour of cheques for "insufficiency of funds". Section 138 makes the dishonour of cheques for insufficiency of funds in the account, an offence punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of cheque, or with both. Clauses (a), (b) and (c) of proviso to Section 138 envisage exceptions and indicate as to under what circumstances, Section 138 would not be applicable. Section 139 raises presumption in favour of the holder of the cheque.

Section 140 mandates as to what defence in a prosecution for an offence punishable under Section 138 is not available.

Section 141 of the Act deals with offences by companies.

Sec. 142 relates to cognizance of offence and it says that : "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint .......

(b) ........

(c) ........"

The complete procedure the filing the complaint is envisaged by the provisions referred to hereinabove. The complaint can be filed only in accordance with the procedure prescribed in the said package and in no other manner. It requires no further illustration to show that the complaint can be filed only within the limitation prescribed under Section 142 Criminal Misc. No. 43571-M OF 2002 /12/

of the Act. The provision does not give any jurisdiction or power to the court to condone the delay. Section 5 of the Limitation Act does not confer any power upon the Court to condone the delay in filing original proceeding. The complaint is neither an appeal nor an application within the meaning of section 5 of Limitation Act. It is true that section 473 of the Cr.P.C. confers the power and jurisdiction upon the Court and enables the Court to take cognizance of an offence after the expiry of the period of limitation, if the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Section 472 of Cr.P.C. is part of the general law, whereas Chapter XIII (sic. XVII) of the Negotiable Instrument Act, 1881 is a special law which prescribes a special procedure and limitation. The jurisdiction conferred upon the Courts to take cognizance of an offence after the expiry of the period of limitation under Section 473 of Cr.P.C. has no application whatsoever to a proceeding under Chapter XVII of the Negotiable Instruments Act.

4. For the aforesaid reasons, the order passed by the learned IV Additional Munsif Magistrate, Guntur is set aside." Having considered the facts and the case law, the judgments relied upon by the learned counsel for the respondent, in my considered opinion, are not attracted to the facts of the case. In the case of Nambhi Raj (supra), this Court was dealing with a case wherein the Magistrate had restored the application at its original number and stage. Objection was taken that the Magistrate had no jurisdiction to review the earlier order by which the complaint had been dismissed in default. In para-4 of the judgment, it has been held that the Additional Sessions Judge, having upheld the order of the Magistrate of restoring the complaint, it Criminal Misc. No. 43571-M OF 2002 /13/

automatically follows that the earlier order of dismissal of complaint had been set at naught by the revisional court. This was held in view of the objection of the party that the order of dismissal of complaint for want of prosecution could not have been reviewed. Thus, this Court was not directly dealing with the issue involved in the present petition.

So far as the other judgment relied upon by the learned counsel for the respondent is concerned, viz. Jatinder Singh's case (supra), the Hon'ble Supreme Court was dealing with a case u/s 494, IPC and, therefore, the scope of dismissal of complaint and its restoration was considered in that context. The provisions of the Act were not before the Hon'ble Supreme Court for consideration and, therefore, on facts, the judgment is not relevant.

I am of the considered opinion that in the case in hand, there being no provision for condonation of delay in the Act and because, admittedly, the fresh complaint was instituted on 2.12.2000, which was beyond limitation, cognizance of the same could not have been taken. The Act provides for specific time period at various stages of the proceedings u/ss 138 and 142 of the Act. At the point of time when the issue was being considered by the Magistrate, there was no proviso under clause (b) of Section 142 of the Act to even consider the condonation of delay. The Act is a special legislation and the provisions of Section 473, Cr.P.C. could not have been invoked for condonation of delay. In this regard, I find support from the judgment of the Hon'ble Supreme Court of India in P.P.Unnikrishnan (supra).

Having considered the facts and circumstances of this case and Criminal Misc. No. 43571-M OF 2002 /14/

the cases cited by the petitioner, discussed hereinabove, I am of the considered opinion that order of summoning dated 17.9.2002 is illegal and is liable to be set aside.

In view of the above discussion, the proceeding emanating from Criminal Complaint No.216 dated 2.12.2000 titled 'Kamla Devi v.

Kiran Jain' and all subsequent and consequent proceedings are hereby quashed.

The petition stands allowed.

July 26, 2006 ( AJAI LAMBA )

Kang JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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