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2007 DIGILAW 995 (MP)

Falkan Medico Ltd. v. Pankaj Advertising

2007-09-14

B.M.GUPTA

body2007
ORDER 1. This petition is for impugning the order dated 4th May, 2007 passed by the Special Judicial Magistrate, Gwalior in Criminal Case No.101/05, by which the learned Magistrate after hearing both the parties, has rejected the objection taken by the petitioners with regard to the complaint being barred by time and has recorded the plea of the petitioners for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2A. The facts of the case, in brief, are that one cheque was issued by the petitioners in favour of the respondent. That cheque was presented for encashment on 19th March, 1999 which was dishonoured by the bank on 8th April, 1999 with a note that no sufficient amount was available in the account of the petitioners. Notice of demand was issued by the respondent on 16th April, 1999 by registered post. No AD receipt was received, however, deeming that up to 26th April, 1999 the notice could have been served on the petitioners, the respondent filed the complaint on 25th May, 1999 against the petitioners for the aforesaid offence. It was registered as Criminal Case No. 977/99. On 16th July, 2004, this complaint was fixed for service of the petitioners, who are accused in the case. Nobody appeared on behalf of the respondent/complainant on that day, hence, the complaint was dismissed for want of prosecution. . 2B. That, thereafter, present second complaint was filed by the respondent on 9th August, 2004 which has been registered as Criminal Case No. 101 /05. As per the averment in this second complaint, the Advocate engaged by the respondent assured him that he will appear on behalf of the respondent and file the process fee in compliance of the order, hence, on this assurance, he did not appear in the Court on 16th July, 2004. After dismissal of the complaint, the Advocate of the respondent called him and informed on 7th August, 2004 about the fact of dismissal of the complaint for want of prosecution. Thereafter, the respondent immediately filed this second complaint on 9th August, 2004. On these averments, the learned Magistrate considering the amended provision of section 142 of the Act, condoned the delay, took cognizance against the petitioners and issued process under section 204 of CrPC against them vide order dated 30th June, 2005. Thereafter, the respondent immediately filed this second complaint on 9th August, 2004. On these averments, the learned Magistrate considering the amended provision of section 142 of the Act, condoned the delay, took cognizance against the petitioners and issued process under section 204 of CrPC against them vide order dated 30th June, 2005. Vide Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 enforcible w.e.f. 6.2.2003, the following proviso has been added with sub section (b) of section 142 of the Act- "Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period." 2C. That, on 29th August, 2006, the petitioners appeared and filed one application under section 245 (2) of CrPC raising objection that the complaint is barred by time, hence the same is required to be dismissed. The learned Magistrate recorded the plea of the petitioners for the offence punishable under section 138 of the Act under section 251 of CrPC and fixed the case for hearing on the aforementioned application and evidence of the respondent/complainant on 25th September, 2006. Feeling aggrieved, revision was tiled by the petitioners. Vide order dated 6th February, 2007 passed in Criminal Revision No. 300/06, Sessions Judge, Gwalior set aside the aforementioned order dated 29th August, 2006, remanded the case to the learned Magistrate with a direction that after disposal of the application under section 245 (2) of CrPC, rest of the steps will be taken by the learned Magistrate in accordance with Jaw. Thereafter, on 16th March, 2007 the aforementioned application under section 245 (2) of CrPC was dismissed as withdrawn by the learned Magistrate. However, written submissions dated 4th May, 2007 were tiled on behalf of the petitioners raising the same dispute with regard to the limitation to be decided at the time of hearing the arguments before recording of the plea of the petitioners under section 251 of CrPC. 2D. That, vide impugned order dated 4th May, 2007, the learned Magistrate rejected the objection raised by the petitioners on the ground that he has already taken cognizance against them on 30th June, 2005 and this order has not been assailed by the petitioners in the higher forum. 2D. That, vide impugned order dated 4th May, 2007, the learned Magistrate rejected the objection raised by the petitioners on the ground that he has already taken cognizance against them on 30th June, 2005 and this order has not been assailed by the petitioners in the higher forum. In view of this fact, the order dated 30th June, 2005 has become final and as observed by the apex Court in Adalat Prasad v. Rooplal Jindal and others [2005 (I) MPWN 40 = 2004 (7) SCC 338 ] and in Subramaniyam Sethu Raman vs. State or Maharashtra and others [ 2005 (I) MPLJ 260 ] once a Court has taken cognizance against the petitioners under section 204 of CrPC, it cannot reconsider its own order and on this ground has rejected the objection raised by the petitioners. Feeling aggrieved, the petitioners have filed this petition. 3. From the afore-quoted tactual matrix of the case, right from the presentation of the cheque for encashment in the bank till date, it appears that order dated 30th June, 2005 condoning the delay in lodging of the complaint under aforequoted newly added proviso of section 142 of the Act, has been passed by the learned Magistrate without providing any opportunity of hearing to the petitioners. Right from the very beginning when they carne to know about this litigation and appeared before the Court, they are asailing this point before one forum to other, despite that they have not been heard on the point. In similar set of facts and circumstances, the apex court in the case of State of Maharashtra v. Sharad Chandra Vinayak Dongre and others [AIR 1995 SC 23I] has observed in paras 5 and 9 as under: "5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice 10 the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. 9. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. 9. Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decision of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter." 4. As per the facts of that case, complaint was tiled against respondent S.Y. Dongre by the State alongwith an application for condonation of delay. The application was allowed and delay was condoned and cognizance was taken against the respondent. Upon his appearance, he assailed that order under section 482 of CrPC before the High Court on two grounds; I, that, delay was condoned without hearing him 2. that, cognizance was taken on an incomplete charge-sheet. The High Court found that the CJM had allowed the application for condonation of delay without recording any reasons and without hearing the respondents and behind their back. The High Court further found that the charge-sheet was incomplete and quashed the proceedings. The State challenged the order before the apex Court. The apex Court has observed as quoted hereinabove. 4. In view of the observation of the apex Court as quoted hereinabove, the case deserves to be remitted to the learned Magistrate for deciding the point of limitation afresh after hearing both the parties and thereafter proceed further in accordance with law. Consequently, the petition is partly allowed. The impugned order is set aside. The case is remitted to the learned Magistrate with aforementioned direction.