IMPORTANT POINT
Dishonour of cheque – When complaint was filed beyond period of limitation, complaint is liable to be dismissed.

JUDGMENT

The appellant has filed the present appeal questioning the correctness of the judgment of the III Additional Chief Metropolitan Magistrate, Hyderabad in CC No.584 of 1999 dated 20.06.2008 acquitting the respondents/accused for the offences under Section 138 of the Negotiable Instruments Act.

2. The case of the appellant is that its company has supplied goods in the course of day to day business to the respondents and towards sale consideration, the cheque Ex.P4 for Rs.10,68,000/- was issued by the 1st respondent company, owned by the 2nd respondent. The said cheque when presented for clearance was returned unpaid. Aggrieved by the same, the appellant issued legal notice. A copy of which is marked as Ex.P6. Pursuant to the issuance of the said legal notice, since the payment was not made, the appellant company represented by its Director S.N.Agarwal filed the present complaint.

3. Learned Magistrate after examining Sri Gopal Agarwal, the Managing Director of the appellant company and marking Exs.P1 to P13 and also examining the 2nd respondent as D.W.1 and one Senior Assistant from RTA Department as D.W.2 V. Narasimha Reddy, dismissed the complaint.

4. The main ground on which the complaint was dismissed was that the complaint was filed beyond limitation. Originally the complaint was filed on 25.08.1999 before IV Additional Metropolitan Magistrate, which is the jurisdictional Court. After the said Court returned the complaint on the point of jurisdiction, the complaint was filed in the Court of III Additional Chief Metropolitan Magistrate at Hyderabad, which admittedly is beyond the period of limitation prescribed under Section 138 of the N.I. Act for filing the complaint. The learned Magistrate also found that the de facto complainant/appellant also failed to make out his case that there was any legally enforceable debt after going through Exs.D2 to D45, which were marked by the 2nd respondent/A2. After going through Exs.D2 to D45, which are copies of personal register extract, though heavy material were transported in autos, motor cycles and cars, which numbers were reflected in Exs.D2 to D45, transportation of goods was not being proved by the complainant under Exs.D2 to D45. The learned Magistrate also found that service of legal notice was also not proved as the acknowledgment Ex.P11 does not bear the signatures of the respondents, which is admitted by the complainant/P.W.1. For the above reasons, the learned Magistrate found that the complaint has to be dismissed and accordingly acquitted the respondents.

5. Admittedly, the complaint was initially filed before the IV Metropolitan Magistrate, Hyderabad, which does not have jurisdiction and subsequently filed before the III Additional Chief Metropolitan Magistrate at Hyderabad on 06.09.1999. According to Section 142 of the N.I. Act, a complaint has to be made within one month of the date on which the cause of action arises under clause “C” of proviso to Section 138 of the N.I. Act. Admittedly, the date 06.09.1999 is beyond one month limitation as prescribed under Section 142-B of the N.I. Act.

6. The learned counsel for the appellant submits that since the complaint is filed in time before the IV Metropolitan Magistrate on 25.08.1999, the subsequent filing before the concerned jurisdictional Court would only be a resubmission. Since the complaint was filed in time before the IV Metropolitan Magistrate, Hyderabad, the present complaint is maintainable and not beyond the period of limitation. In support of his contention, he relied on the judgment of this Court in Appu Ramani and others v. The State 1993 (1) ALT 370 and has drawn the attention of this Court to para 12, which reads as follows:—

“12. Following the above principles, let us examine the facts of the present case. The date of offence in this case is 30-11-1986 and the charge sheet was filed in the first instance on 19-10-1987 and it was returned for rectifying certain defects on the same day, i.e.,