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2014 Supreme(Mad) 4506
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
A.Rahamathullah @ Maulanav - Petitioner
Versus
P.A.K. Manohran - Respondent
Crl.O.P. No.6944 of 2009 and M.P.No.1 of 2009
Decided on : 18.12.2014
For Petitioner: Mr. N.Manokaran
For Respondent: Mr. V.S.Kesavan
Headnote:
Negotiable Instruments Act - Section 138 – Claim of compensation – Condo nation of delay - Only ground raised in this petition is that order of learned Magistrate taking cognizance of offence on private complaint filed by respondent is barred by limitation - Learned counsel for respondent would submit that of course there was delay in presentation of complaint by one day but lower Court according to learned counsel has impliedly, condoned delay and thus order taking cognizance is not illegal – Court have considered the above submissions Factually statutory notice under Section 138 Negotiable Instruments Act issued by respondent was received by petitioner - As per Section 138 of Negotiable Instruments Act though the period of limitation expired complaint was admittedly presented before learned Magistrate only - It was returned by learned Magistrate repeatedly and finally cognizance was taken – Held, As court have already noted in reaching this conclusion, light can be drawn from legal maxims - Legal maxims are referred to in Bharat Kale object of criminal law is to punish perpetrators of crime - This is in tune with well-known legal maxim tempus locus occurred reign which means that a crime never dies - At same time, it is also the policy of law to assist vigilant and not the sleepy - This is expressed in the Latin maxim vigilant bus et non - Chapter XXXVI which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim - But even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences - Provision is therefore, made for condo nation of delay - Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of Code is supported by the legal maxim curiae which means that the act of court shall prejudice no man It bears repetition to state that the courts inaction in taking cognizance Courts inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant - Chapter XXXVI thus presents the interplay of these three legal maxims - Provisions of this Chapter, however, are not interpreted solely on basis of these maxims - They only serve as guiding principles - In view of principles stated in these judgments, it is necessary for this Court to afford an opportunity to respondent herein to go before lower Court and to file a petition seeking condo nation of the delay by showing sufficient cause. Similar view has been taken by this Court and 2 others Bank of India Branch - In view of the said settled position court view that in the instant case order of learned Magistrate taking cognizance deserves to be set aside and matter needs to be remanded back to lower Court with a liberty to respondent herein to file an appropriate petition seeking condo nation of delay by showing sufficient cause - Thereafter it may be appropriate for lower Court to consider the same and proceed further in accordance with law - . It is true that the pristine maxi - But even a vigilant litigant is prone to commit mistakes. As the aphorism to err is human is more a practical notion of human behavior than an abstract philosophy unintentional lapse on part of a litigant should not normally cause doors of judicature permanently closed before him - Effort of court should not be one of finding means to pull down shutters of adjudicatory jurisdiction before a party who seeks justice on account of any mistake committed by him but to see whether it is possible to entertain his grievance if it is genuine - Petition is allowed
The extent of the power of a Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint for an offence under Section 138 of The Negotiable Instruments Act has come up for consideration in this case. The petitioner is the second accused in C.C.No.336 of 2007 on the file of the learned Judicial Magistrate, Dharapuram. The first accused is a company by name M/s. Moulana Leathers, of which, the petitioner is a partner. The respondent has filed the said case alleging that the petitioner and the first accused have committed an offence punishable under Section 138 of The Negotiable Instruments Act. Challenging the same, the petitioner is before this Court with this petition.
2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and I have also perused the records carefully.
3. The only ground raised in this petition is that the order of the learned Magistrate taking cognizance of the offence on the private complaint filed by the respondent is barred by limitation. The learned counsel for the respondent would submit that, of course, there was delay in presentation of the complaint by one day but the lower Court, according to the learned counsel, has impliedly, condoned the delay and thus the order taking cognizance is not illegal.
4. I have considered the above submissions.
5. Factually, the statutory notice under Section 138 of The Negotiable Instruments Act issued by the respondent was received by the petitioner on 26.05.2005. As per Section 138 of The Negotiable Instruments Act, though the period of limitation expired on 11.07.2005, the complaint was admittedly presented before the learned Magistrate only on 12.07.2005. It was returned by the learned Magistrate repeatedly and finally cognizance was taken on 22.01.2007.
6. Before going into further facts of the case, let us have a quick look into the legal position. Prior to the Amendment Act 55 of 2002, which came into force on 06.02.2003, for condonation of delay in taking cognizance of an offence under Section 138 of The Negotiable Instruments Act on a private complaint, there was no enabling provision in The Negotiable Instruments Act. Indisputably, Section 5 of the Limitation Act is also not applicable to criminal proceedings except for appeals or revisions, for which, express provisions have been made in Articles 114, 115, 131 and 132 of the said Act. In respect of other offences, Section 473 of the Code of Criminal Procedure enables the Magistrate/Court to condone the delay. Why such a provision was introduced in the Code of Criminal Procedure should be taken note of. Chapter XXXVI was inserted in the Code of Criminal Procedure, prescribing limitation period for taking cognizance and making provisions for extension of period of limitation (vide Section 473 Cr.P.C.) with a view to quicken the prosecution of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. This was done on the recommendation of the Law Commission of India in its report and the recommendation of the Joint Parliamentary Committee. As has been observed by the Honourable Supreme Court in Sarah Mathew Vs. Institute of Cardio Vascular Diseases ((2014) 2 SCC 62), the effort of the legislature was to make the criminal justice system more orderly, efficient and just by providing appropriate period of limitation for certain offences.
7. It is with a similar object, by Amendment Act 55 of 2002, proviso to Section 142 of The Negotiable Instruments Act was introduced, enabling a Magistrate to take cognizance of an offence under Section 138 of The Negotiable Instruments Act after the prescribed period of limitation, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period.
8. But one could perceive the different expressions used in Section 473 of the Code of Criminal Procedure and the proviso to Section 142 of The Negotiab
