Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Applicant:Smt. Clare George, Advocate.
For the Respondent:A.C. Patil, Advocate.

IMPORTANT POINT
Magistrate would not have jurisdiction to condone delay in filing complaint under Section 138 NI Act after trial is over.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138(c) and 142(b) —Prosecution for dishonour of cheque—Limitation for filing complaint—Cause of action commences from the date expiry of 15 days of the date on which drawer of cheque received or deemed to have received the notice—Proviso does not speak of knowledge of complainant about date on which drawer of cheque had received notice.
       Held: The cause of action as per clause
       (c ) of proviso to Section 138 of the Act would start to run from the expiry of 15 days of the date of the receipt of the notice by the drawer of the cheque, upon the failure on the part of the drawer of the cheque to pay the amount demanded in the notice, within 15 days of the receipt of such notice. Reading of clause (c) of Section 138 and clause (b) of Section 142 of the Act together clearly indicates that the cause of action for filing the complaint commences from the date of expiry of 15 days of the date on which the drawer of the cheque received or deemed to have received the notice. The said proviso does not speak of the knowledge of the complainant about the date on which the drawer of the cheque had received the notice. In the case of hand, even as per the contents of Ex P13 on which the complainant placed strong reliance, the notice said to have been issued by the complainant has been served on the accused on 18.12.2003. From that day, the accused had 15 days time to pay the amount. The period of 15 days expired on 2.1.2004. Within 30 days from that date the complaint ought to have been filed as provided under clause (b) to Section 142 of the Act. (Para 14)
       (ii) Negotiable Instruments Act, 1881—Section 142—Delay condonation in filing complaint—Magistrate has no jurisdiction to condone delay after the trial is over and when case was posted for arguments.
       Held: The learned Magistrate had no jurisdiction to condone the delay for lodging the complaint after the trial was over and when the case was posted for arguments on merits. The learned Magistrate was under an obligation to consider before taking cognizance as to whether the complaint was within the time and if not, as to whether the complainant had made out sufficient cause for condoning the delay. Since the learned Magistrate has not condoned the delay, he had no jurisdiction to take cognizance criminal prosecution got commenced. Since the taking of cognizance by the learned Magistrate in this case was without any jurisdiction, the entire trial held against the accused is vitiated and therefore, the learned Sessions Judge has rightly held that the learned Magistrate was not justified on convicting the accused and therefore the judgment of the learned Sessions Judge. (Para 15)