IMPORTANT POINT
A complaint u/s 138 of Negotiable Instruments Act made beyond one month of date on which cause of action had arisen is barred & Magistrate has no jurisdiction to take cognizance by condoning delay either u/s. 473 Cr. P.C. or u/s 5 of Limitation Act.

B.M. Thulasidas, J. - The order on C.M.P. No.4432 of 1993 of the Judicial First Class Magistrate, Kozhikode filed under Section 473 Cr. P.C. is under challenge in this revision. By the said petition the petitioner sought to condone the delay of 15 days to file the complaint against the respondent for an offence punishable under Sec. 138 of the Negotiable Instruments Act, for short the Act. It was submitted that he was hospitalised at the relevant time and could not file the complaint within the period prescribed. He produced a certificate from the doctor who treated him and prayed that the delay may be condoned. The Court below by the Impugned order refused to condone the delay and dismissed the petition.

2. Heard counsel for the Petitioner. 3. Under Section 142 of the Act:

"Notwithstanding anything contained in the Code of Criminal Procedure,

(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;

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

There was no limitation for initiating criminal proceedings before trial Courts under the Code of 1898. But a period was prescribed under Section 417(4) of that Code in regard to appeal against acquittal. Provisions as to limitation for taking cognizance of offences have now been provided for the first time in Chapter XXXVI of the Code. But in view of the non-obstante clause in Section 142 of the Act, provisions in Chapter XXXVI, and particularly Section 473 would not apply to a complaint under the Act, which, however in terms has not excluded the applicability of the provisions of Limitation Act, wherein Section 29(2) (which alone is relevant for the purpose of this case) it is provided that:

"Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule -

(i) Section 3 shall apply, as if such period was the period prescribed by the Schedule.

(ii) Sections 4 to 24 shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. But this will only be to the extent to which they are not expressly excluded by such special or local laws".

4. It was held in Mangu Ram v. Delhi Administration1, while dealing with the question whether Section 5 of the Limitation Act applied to an application for special leave made under Section 417(4) Cr. P.C. 1989, which corresponds to Section 378 of the new Code, that:

"There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Whereas, under the Indian Limitation Act, 1908, Section 29, sub-section (2), Cl. (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded, Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law: Section 29 subsection (2) Clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while