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2004 DIGILAW 446 (KAR)

VINAYAK v. SUHAS PADMAKAR ASUKAR

2004-07-12

K.L.MANJUNATH

body2004
K. L. MANJUNATH, J. ( 1 ) THOUGH the matter is listed for orders on an interlocutory application, by consent the writ petition is heard finally. ( 2 ) A petition under Section 138 read with 142 of Negotiable Instruments Act ('n. I. Act' for short) was filed by the respondent before the j. M. F. C. Yellapur against the petitioner herein. According to the respondent, the petitioner had issued a cheque for Rs. 54,900/- on 25-10-1998. On presentation, the cheque issued by the petitioner, returned with a shera 'insufficient funds'. Therefore the respondent issued a notice and thereafter filed a complaint on 25-11-1998 in p. C. 51/98. After recording the sworn statement of the complainant, on 17-5-1999 the cognizance was taken by the court. Subsequently, evidence was also recorded. When the case was posted for arguments on merits, the petitioner herein filed an application under Section 190 of cr. P. C. Read with 142 of n. I. Act, requesting the court to discharge him, on the ground that the cognizance taken by the court was barred by limitation. The court below interpreting Section 142 of n. I. Act, held that the respondent was required to file the complaint within one month from the date of cause of action and there is no limitation for taking cognizance by the court and the application of the petitioner came to be rejected on 11th November 2003 as per Annexure-C to the writ petition. ( 3 ) CHALLENGING the legality and correctness of the order passed by the jmfc, yellapur in c. C. 244/99 on the application filed by the petitioner under Section 190 cr. P. C. Read with 142 of n. I. Act, the present petition is filed. ( 4 ) I have heard the learned counsel for the parties. Sri S. R. Hegde, appearing for the petitioner, contends that the trial court has committed a serious error in not considering the fact that Code of Criminal Procedure is not applicable to a case while handling the offence said to have been committed under Section 138 of the n. I. Act. Relying upon the Provisions of Section 142 of n. I. Act, he contends that if the court had not taken cognizance within one month from the date of complaint, the petitioner has to be discharged only on the ground of limitation. Relying upon the Provisions of Section 142 of n. I. Act, he contends that if the court had not taken cognizance within one month from the date of complaint, the petitioner has to be discharged only on the ground of limitation. It is also his case that mere lodging of complaint within one month from the date of cause of action does not amount to taking cognizance by the court. Therefore, he requests this court to set aside the impugned order. ( 5 ) LEARNED counsel for the respondent reiterating the Provisions of Section 142 of the n. 1. Act, contends that the court is bound to take cognizance of an offence under Section 138 of n. I. Act, whenever a complaint in writing is made by the payee or by the holder in due course of the cheque within one month from the date of cause of action arose as per clause-c of Section 138 of the n. I. Act. He further contends that no time limit is fixed for the court to take cognizance under Section 142 of the n. I, act. To support his arguments, he has relied upon the judgment of the Hon'ble Supreme Court reported in ILR 2004 Karnataka 174 : AIR 2003 SC 4560 (Bharat Damodar Kale V. State of A. P.) ( 6 ) PER contra, learned counsel for the petitioner has placed reliance on the following decisions;1. Ilr 1996 KAR 1615 : 1997 Cri LJ 1261 (Ashok Anaraj Jain V. State of Karnataka) 2. Air 2000 SC 2946 (Narasingh Das Tapadia V. Goverdhan Das Partani) 3. Ilr 1988 KAR 666 (state by a. Mahadeva V. Papireddy) by placing reliance on these decisions, he requests this court to set aside the impugned order. ( 7 ) HAVING heard the learned counsel for the parties, this court has to consider whether the cognizance taken by the court below on the complaint of the respondent was barred by limitation. ( 8 ) IN order to appreciate the rival contentions, this court has to consider the Provisions of Section 142 of n. I. Act. ( 7 ) HAVING heard the learned counsel for the parties, this court has to consider whether the cognizance taken by the court below on the complaint of the respondent was barred by limitation. ( 8 ) IN order to appreciate the rival contentions, this court has to consider the Provisions of Section 142 of n. I. Act. Section 142 reads here under : (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. from the plain reading of the Section, it is clear to me that a court can take cognizance of offence punishable under Section 138 of n. I. act provided the complainant has lodged the complaint in writing or holder of the cheque in due course within one month from the date of cause of action arose as per clause-c of the proviso to Section 138. There is no limitation is fixed under Section 142 of the n. I. Act, for a court to take cognizance. What was required to be. Considered by the court before taking cognizance is whether the complaint in writing either by the payee or by the holder of the cheque in due course was presented within one month. ( 9 ) IN the instant case, it is not in dispute that the cheque was dishonoured on 25-10-1998 and the complaint has been lodged on 25-11-1998. It is not the case of the petitioner that the complaint lodged by the respondent before the court below was beyond one month. If the complainant has presented the complaint within one month before the magistrate and if cognizance is taken by the court at a later date, the petitioner cannot contend that the cognizance taken by the court below as barred by limitation. Therefore, before taking cognizance, the court has to consider only the Provisions of (a) and (b) of Section 142 only. Therefore, before taking cognizance, the court has to consider only the Provisions of (a) and (b) of Section 142 only. The judgments relied upon by the learned counsel for the petitioner are rendered while considering the Provisions of Criminal Procedure Code 1973. ( 10 ) IN AIR 2000 SC 2946 , the Hon'ble Supreme Court while dealing with a complaint lodged under the Provisions of sections 138 and 142 of the n. I. Act, has held that even if the complaint is lodged before expiry of one month, such complaint cannot be dismissed as premature. The Supreme Court also held that the court has to wait till the completion of one month in order to take cognizance. The court can dismiss the complaint, if such complaints are lodged beyond one month from the date of cause of action. In the instant case, the complaint lodged by the respondents is within one month. Therefore, the decisions relied upon by the counsel for the petitioner is no way helpful to the case on hand. ( 11 ) CONSIDERING the fact that the application for discharge was filed by the petitioner when the matter was listed for arguments on merits after completion of evidence, this court is of the opinion that the petitioner has filed the application only to drag on the proceedings, in fact, the petitioner coud have urged the very same contentions while addressing the arguments on merits. In the circumstances, the petition has to be dismissed on exemplary cost of rs. 10,000/ -. ( 12 ) ACCORDINGLY, the petition is dismissed with cost of Rs. 10,000/ -. Petition dismissed. --- *** --- .