HIGH COURT OF TRIPURA

AGARTALA

CRL.A. 18 of 2017

Shri Sankar Choudhury,

son of late Suresh Chandra Choudhury,

resident of village & P.O. Rajbari,

P.S. Panisagar, District: North Tripura

----Appellant(s)

Versus

1.

The State of Tripura,

(Notice to be served upon the

Public Prosecutor, Hon’ble

High Court of Tripura)

2.

Shri Abani Mohan Das,

son of late Kutumana Das ,

resident of Village: P.O & P.S. Panisagar,

Dharmanagar, District: North Tripura

----Respondent(s)

For Appellant(s)

: Mr. H.K. Bhowmik, Adv.

For Respondent(s)

: Mr. S. Kar. Bhowmik, Adv.

: Mr. S. Ghosh, Spl. P.P.

Dated of hearing and

delivery of judgment and order : 30.07.2019

Whether fit for reporting

: YES

HON’BLE MR. JUSTICE S. TALAPATRA

Judgment & Order (Oral)

Heard Mr. H.K. Bhowmik, learned counsel appearing

for the appellant as well as Mr. S. Kar Bhowmik, learned counsel

appearing for the respondent No.2 and Mr. S. Ghosh, learned

Spl. P.P. appearing for the State.

[2]

Since this appeal emerges from the complaint under

section 138 of Negotiable Instrument Act, 1881, NI Act in short,

it has been contended by Mr. S. Kar Bhowmik, learned counsel

Page 2 of 12

appearing for the respondent No.2 that taking of cognizance of

the offence, stated in the complaint, was time-barred and that

condonation of delay as allowed by the magistrate is grossly

illegal and erroneous inasmuch as the respondent No.2 being

the accused was not given any opportunity to have his say on

the assigned cause for delay. Earlier when the appellant had

approached this court by filing an appeal under Section 378 of

the Cr.P.C. against the order of acquittal dated 18.11.2008

passed in the complaint proceeding being C.R. 02 of 2008, after

appreciating the evidence, this court had observed that it was

apparent on the records that the complaint under Section 138 of

N.I. Act was filed beyond the prescribed period of limitation and

there had been no prayer for condonation under proviso to

Section 142 of the said Act. Despite that the cognizance was

taken illegally on 03.01.2008. The said order of taking

cognizance was reproduced in the judgment and order dated

13.01.2014 delivered by this court in Crl.A.119 of 2008.

[3]

Finally, this court had observed that even no

statement of the complainant was recorded under Section 200

of the Cr.P.C. for purpose of issuing the process. But the

process was issued by the same order dated 03.01.2008 and

thereafter the inquiry continued commencing from the reading

of the substantive accusation to the respondent No.2. Having

situated thus, this court had observed and directed as follows:

“The

Sub-Divisional

Judicial

Magistrate,

Dharmanagar, North Tripura shall initiate the

proceeding from the stage of cognizance of

Page 3 of 12

offence in terms of law. After receipt of the

records from this court, the Sub-Divisional Judicial

Magistrate, Dharmanagar, North Tripura shall

issue notice on the complainant for his appearance

so as to follow the due process of law.”

[4]

It appears from the judgment dated 08.08.2016

delivered in CR.02 of 2008 (NI ACT) by the Chief Judicial

Magistrate, North Tripura, Dharmanagar, that the appellant was

convicted under Section 138 of the NI Act, but that has been

reversed in the Criminal Appeal No. 14 of 2016 [Abani Mohan

Das Vs. Sankar Choudhury]. After quashing the order of

acquittal dated 03.08.2008, the case was remanded for

recommencement of the inquiry from the stage of taking of the

cognizance. The Chief Judicial Magistrate has recorded that the

complainant was allowed to file a petition for condonation of

delay in filing the complaint so that the cognizance of offence

can be taken as per law. On 01.09.2014, the court of the Chief

Judicial Magistrate, North Tripura, Dharmangar on considering

the petition filed by the complainant under proviso to Section

142 of the NI Act