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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
ANANDA KUMAR MUKHERJEE, J.
Soumen Sarkar – Appellant
Versus
State of West Bengal & Another – Respondents
C.R.R. No. 863 of 2014 with CRAN. Nos.5 of 2018 (Old CRAN 3376 of 2018), 7 of 2019 (Old CRAN 4307 of 2019) & 9 of 2022
Decided on : 19-05-2022
Negotiable Instrument Act - Proceedings under section 138 - 138, 142 - The court discussed the provisions of section 138 and 142 of the Negotiable Instrument Act and their interpretation in the context of condonation of delay and taking cognizance of the offence. The court highlighted the requirement for the complainant to satisfy the court of sufficient cause for not making a complaint within the prescribed period and emphasized the statutory provisions for taking cognizance of the offence.
Fact of the Case:
The petitioner filed a revisional application seeking quashing of proceedings under section 138 of the Negotiable Instrument Act. The complaint alleged that the petitioner issued dishonored cheques and the complaint was filed beyond the statutory period.
Finding of the Court:
The court found that the complaint was filed after the amendment of the N.I. Act in 2002 and emphasized the need for the complainant to satisfy the court of sufficient cause for not filing the complaint within the statutory time. The court set aside the impugned order and directed the learned Magistrate to provide an opportunity for the complainant to satisfy the court if there was sufficient cause for the delay.
Issues: The issues involved the jurisdiction of the court to take cognizance of the offence under section 138 and the requirement for the complainant to satisfy the court of sufficient cause for delay in filing the complaint.
Ratio Decidendi: The court emphasized the statutory provisions for taking cognizance of the offence under section 138 and the need for the complainant to satisfy the court of sufficient cause for not filing the complaint within the prescribed period.
Final Decision: The revisional application was allowed, and the impugned order was set aside. The court directed the learned Magistrate to provide an opportunity for the complainant to satisfy the court if there was sufficient cause for the delay.
Key Points: - The judgment emphasizes the need for the complainant to satisfy the court of sufficient cause for not filing within the statutory period under section 138 and 142 (p_1) - It discusses that after amendment in 2002, proviso to section 142(b) allows condonation of delay and affects cognizance timing (p_1) - The court compelled the magistrate to consider the sufficiency of cause for delay before proceeding (p_1) - It notes that cognizance or process should not be issued without proper condonation of delay where required (p_1) - The decision sets aside the impugned order and directs reconsideration if sufficient cause for delay is shown (p_1) - The matter references the requirement that no court shall take cognizance unless the complaint is filed within the permitted period, unless condoned (p_1) - There is discussion of multiple judgments and how they influence whether limitation is to be considered at initiation (p_4, p_11, p_12) - The revisional application ends with direction to provide opportunity to satisfy the court for delay and then proceed legally (p_1, p_18) - The final order: revisional application allowed; interim orders vacated; complainant to appear within a fortnight (p_18)
JUDGMENT :
1. This revisional application under section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner principally against Jagannath Dubey, opposite party no. 2 praying for quashing of proceedings and impugned order dated 25.7.2013 passed by Learned Additional Chief Judicial Magistrate, Raghunathpur, District Purulia, in Complaint Case No. 2 of 2013 under section 138 of the Negotiable Instrument Act.
2. In gist, the facts of the complaint case is that opposite party no. 2 filed a complaint under section 138 of the Negotiable Instrument Act against the petitioner before the court of Learned Additional Chief Judicial, Raghunathpur, Purulia, alleging that the petitioner borrowed a some of money from opposite party no. 2 for his business and in discharge of his liability the petitioner issued two cheques of Rs.1,50,000/- and Rs.2,20,00/- in favour of the opposite party no. 2 drawn on Axis Bank Limited, Durgapur Branch. The payee, deposited the cheques with the State Bank of India, Raghunathpur Branch for encashment but both the said cheques were dishonoured due to insufficiency of fund. A complaint was lodged against the petitioner under section 138 of the Negotiable Instrument Act where it was disclosed that due to illness of the petitioner from 15.5.2012 to 11.11.2012 he could not make any contact with the petitioner and on 12.11.2012 he issued a notice to the petitioner demanding repayment of the amount in terms of section 138 of the Negotiable Instrument Act. It was further stated that due to his illness and medical treatment the opposite party no. 2 was prevented from filing the case against the petitioner. Strange enough cognizance was not taken by learned Magistrate on 15.1.2013 but summons were issued. Thereafter on 4.6.2013 a petition was filed by the complainant for condonation of delay.
3. According to the revisionist there has been material suppression of facts in the complaint and the complaint has been lodged beyond the statutory period under section 142 (a) of the Negotiable Instrument Act, as such the same is not maintainable. The petitioner alleged that learned Magistrate on the basis of the complaint lodged by opposite party no. 2 took cognizance of the offence under section 138 of N.I. Act and issued process to the petitioner. On 19.4.2013 petitioner filed an application for his discharge from the case. In the meantime, on 4.6.2013 the opposite party no. 2 filed an application under section 5 of the Limitation Act praying for condonation of delay in filing of the case of 15.6.2013.
4. After hearing both parties, the application dated 19.4.2013 filed by the petitioner for discharge was rejected on 25.7.2013. It was observed that “the very fact of issuance of summons condones the delay in filing the case.” This hypothetical observation does not dispense the mandatory statutory requirement of condonation of delay or taking cognizance of an offence.
5. Being aggrieved the present application has been filed by the accused petitioner on the grounds inter alia, that the cognizance taken by the learned Magistrate is bad in law and the proceeding is not maintainable as per the provisions under section 138(b) and 142 (b) of the Negotiable Instrument Act. It is urged that learned Magistrate has committed error of law in taking cognizance as the complainant issued the second notice after the lapse of statutory period which is not maintainable under the provisions of section 142. Furthermore the complaint case filed by opposite party no. 2 is barred by limitation and no cognizance of the offence could be taken contrary to the provision under section 142 of the Negotiable Instrument Act. It is the case of the petitioner that learned Magistrate took cognizance of the offence before considering the petition for condonation of delay and thereby the proceeding in the complaint case is not maintainable and is liable to be quashed.
6. The petitioner has filed a supplementary affidavit enclosing photo copy of
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