IMPORTANT POINT
 When the cheque has been issued by a firm, then in a complaint u/s 138 Negotiable Instruments Act initially filed against partner, the Court is not debarred from summoning firm inspite of proviso regarding limitation u/s 142 of the Act.

K.T. Thomas, J. Petitioner is a firm. On the strength of some cheques said to have been issued by the petitioner-firm two complaints have been filed against the managing partner of the firm for the offence under S. 138 of the Negotiable Instruments Act (for short 'the Act'). First complaint was filed on 23.11.1991 and the other was filed on 28.6.1991. Managing partner of the firm, after entering appearance, raised a contention in the lower court that prosecution against him is not maintainable as the firm which drew the cheques was not made an accused in the complaints. On 6.11.1992 the complainant filed a petition in each case praying for imp-leading the firm as additional accused. Though the petitions were stoutly resisted the Chief Judicial Magistrate before whom the complaints were filed, allowed the petitions by the impugned order.

2. Two main contentions have been advanced by the learned counsel for quashing the order. First is that since there is no provision in the Act for impleading a new accused in the case, the court cannot make recourse to the general provisions contained in the Code of Criminal Procedure (for show the Code). Even otherwise S. 142 of the Act makes it clear that prosecution proceedings contemplated therein are either untrammeled or unaided by anything contained in the Code, contended the counsel. The second contention is that the court is debarred from taking cognizance of the offence against the firm after the expiry of the period of the one month from the date of cause of action envisaged in Clause (c) of S. 138 of the Act, and hence the firm cannot be im-pleaded after the said period.

3. Section 142 of the Act reads as follows:

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 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 S. 138;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under S. 138.

4. Section 4(2) of the code requires that all offences under any law, other than the Indian Penal Code, shall also be enquired into or tried and otherwise dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The non-obstante clause in S. 142 of the Act is intended to make it clear that the three matters specified in the Section have over-riding effect on the provision; of the Code. The clause does not keep the provisions of the Code away from trial or inquiry into the offence under S. 138 of the Act as for all other purposes. All that S. 142 restricts is that in taking cognizance of the offence under S. 138 a written complaint (made by either the payee or holder in due course) within one month of the cause of action envisaged in clause (c) of the Section is sine qua non, whatever be the provisions in the Code. The contention that the non-obstante clause in S. 142 is intended to sweep out all the provisions of the Code bell, book and candle is therefore unsound and unsustainable.

5. The second contention seems to be based on the erroneous premise that cognizance taken is against the offender and not of the offence. The prohibition in S. 142 stretches only to the taking cognizance of any offence. It is now well settled that a court takes cognizance only of the offence and not of any offender. It was pointed out by the Supreme Court in Raghubans Dubey v. State of Bihar1, that "once cognizance has been taken by the Magistrate, be takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some othe