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2017 Supreme(Pat) 1247
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Gaurav Roy son of Bijoy Roy - Petitioner
Versus
The State of Bihar & Anr. - Opposite Parties
Criminal Miscellaneous No. 14698 of 2011
Decided On : 16-11-2017
Advocate Appeared:
For the Petitioner: Mr. Aruni Singh, Mr. Sumant Singh
For the Opposite Parties : Mr. Binod Kumar Singh
The main legal point established in the judgment is the mandatory nature of the time limits prescribed under the N.I. Act and the court's power to condone the delay if sufficient cause is shown by the complainant.
Headnote:
Section 482 - Criminal Procedure - Negotiable Instruments Act, 1881 - 138, 142 - The court discussed the provisions of Section 138 and Section 142 of the N.I. Act, emphasizing the mandatory nature of the time limits prescribed for giving notice and filing complaints. The court highlighted the requirement for the payee to give notice in writing to the drawer of the cheque within thirty days of receipt of information from the bank, and the necessity for filing a complaint within one month from the date on which the cause of action arose. The court also emphasized the power of the court to condone the delay if the complainant satisfies the court that there was sufficient cause for not making a complaint within the prescribed period. The court's decision was influenced by the strict interpretation of the time limits and the absence of sufficient cause for the delay in filing the complaint.
Fact of the Case:
The complainant filed a case under the N.I. Act stating that the petitioner issued cheques that were dishonored, and the complaint was filed after a delay of forty-three days.
Finding of the Court:
The court found that the complaint was filed after the prescribed period without sufficient cause for the delay, and the lower court erred in affirming the order and passing the impugned order.
Issues: The issues revolved around the timeliness of the complaint filing, the necessity for giving notice within the prescribed period, and the power of the court to condone the delay.
Ratio Decidendi: The court emphasized the mandatory nature of the time limits prescribed under the N.I. Act and the power of the court to condone the delay if sufficient cause is shown by the complainant.
Final Decision: The impugned order and the entire criminal proceedings were set aside, and the application was allowed.
This application has been filed under Section 482 of the Code of Criminal Procedure (for short ‘the CrPC’) against the order dated 25.10.2010 passed in Criminal Revision No.69 of 2010 by the learned Additional Session Judge-IV, Patna affirming the order dated 08.10.2009 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No. 343(C) of 2008 passed on petition dated 11.05.2009 filed on behalf of the petitioner to drop the case proceeded against him under the provisions of Section 142(b) of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) whereby and whereunder the learned Additional Session Judge-IV, Patna rejected the said revision application holding that there is no illegality in the order and further held that the complaint case filed against the petitioner is not barred by limitation.
2. The short facts of the case are that the complainant (opposite party no.2) filed a complaint case bearing Complaint Case No.343(C) of 2008 stating therein that two cheques bearing no.323031 and 323032 dated 05.11.2007 were issued for an amount of six lacs each by the petitioner drawn on HDFC Bank in favour of the complainant which was presented on 22.11.2007 by the complainant with his banker Dena Bank, at Patna, but the same could not be honoured due to payment stopped by the drawer. Thereafter, the complainant issued a legal notice dated 26.11.2007 which was served on the petitioner on 28.11.2007. On 30.11.2007 the petitioner sent reply to the legal notice dated 26.11.2007 denying the liability. The complainant again sent legal notice dated 14.12.2007 to the petitioner through speed post. Thereafter, a fresh reply dated 24.12.2007 was sent by the petitioner which was received by the complainant on 07.01.2008.
3. Mr. Aaruni Singh, learned counsel for the petitioner submitted that as the petitioner is alleged to have failed to make payment within fifteen days from receiving of the statutory notice dated 26.11.2007 which was received by him on 28.11.2007 as per Section 142(b) read with Section 138(c) of the N.I. Act, the complaint was barred by law of limitation. He submitted that there was delay of forty three days in filing the complaint and without explaining or filing any petition to condone the delay, the learned Magistrate could not have taken cognizance of the offence under Section 138 of the N.I. Act and summoned the petitioner. He submitted that finding of the revisional court that the complaint is not barred by limitation is perverse. He contended that in view of the law laid down by the Supreme Court in K.M. Mathew vs. The State of Kerala, AIR 1992 SC 2206, the learned Magistrate has power to drop the proceeding against the petitioner even after he was summoned as on the basis of the admitted fact the summoning order was bad in law.
4. On the contrary, Mr. Binod Kumar Singh, learned counsel appearing on behalf of the complainant submitted that there is no illegality in the order passed by the revisional court affirming the order passed by the learned Magistrate and dismissing the revision application. He submitted that the application filed by the petitioner is totally misconceived and not maintainable. According to him, after receipt of the legal notice dated 26.11.2007, on 28.11.2007 the petitioner made a false reply denying the liability and, thus, the complainant was again compelled to send reply of the false reply to the petitioner and that counter reply was sent through registered post on 14.12.2007 claiming the due amount annexing necessary documents with notice and as the petitioner finally refused to pay the aforesaid amount with other dues vide his reply dated 24.12.2007 which was received by the complainant on 07.01.2008. The complaint was filed on 04.02.2008. On the basis of the aforesaid submissions, he submitted that the complaint was filed within a month from the date of cause of action which had arisen on 07.01.2008. He submitted that taking note of all the facts and
