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Madhya Pradesh High Court · body

2008 DIGILAW 1183 (MP)

GIRRAJPATWA v. DAYARAM

2008-09-24

P.K.JAISWAL

body2008
Judgment P.K. JAISWAL, J. ( 1. ) Heard. Petitioner in this petition challenging the order dated 30.7.07 passed by the JMFC, Raghogarh, District Guna, in Criminal Case No.323/07, whereby the learned JMFC allowed the application filed by the respondent under Section 245, Cr.P.C. and dismissed the private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short the "Nl Act"), as barred by limitation. ( 2. ) Brief facts of the case are that on 23.9.06, the respondent issued a cheque of Rs.30,000/- to the petitioner. On 2.12.06, the petitioner presented the said cheque for encashment, which was dishonoured and the cheque has been returned unpaid to the petitioner alongwith a memo that for want of sufficient fund, the cheque has been dishonoured. The petitioner on 15.12.06 issued notice under Section 138(1) of NI Act to the respondent, which was received by the respondent on 15.12.06. The cause of action for filing the complaint arose on 31.12.06 and petitioner can file a complaint within a period of 30 days from the date of receipt of notice by the respondent. After receipt of notice, the respondent came to the petitioner and stated that he will pay the amount of Rs.30,000/- on or before 15.3.07. In view of the above assurance given by the respondent, the petitioner could not file the complaint in time, i.e., upto 29.1.07 and when the amount was not paid by 15.3.07, the petitioner filed a complaint on 11.4.07. The above stated facts are mentioned in Para 4 and 5 of the complaint. Learned Magistrate took cognizance and issued notice to the respondent. ( 3. ) The respondent after receipt of the notice filed an application under Section 245 (2), Cr.P.C. on the ground that the cheque was dishonoured on 2.12.06 and thereafter first notice was issued on 15.12.06, which was received by the respondent on 15.12.06 itself, but no complaint was filed within the period, i.e., upto 29.1.07 and thereafter second notice dt. 15.3.07 was issued on 26.3.07 and complaint was filed on 11.4.07. Hence, the complaint was not filed within time from the date of receipt of notice and the complaint filed by the petitioner is barred by time. ( 4. 15.3.07 was issued on 26.3.07 and complaint was filed on 11.4.07. Hence, the complaint was not filed within time from the date of receipt of notice and the complaint filed by the petitioner is barred by time. ( 4. ) The petitioner filed his reply and very specifically stated therein that the complaint has been lodged on the basis of first notice which was issued on 15.12.06 and he explained the delay for not filing the complaint for the period from 29.1.07 to 11.4.07. ( 5. ) Trial Court by the impugned order dated 30.7.07 allowed the application and dismissed the complaint as barred by limitation. ( 6. ) Learned counsel for the petitioner submitted that Chapter XIX of the Code of Criminal Procedure deals with trial of warrant-cases by Magistrates. The provision of section 239 of the Code are applicable only to warrant cases. Criminal case under Section 138 of NI Act, for dishonour of cheque is a summons case. Section 239, Cr.P.C. would not apply (See (2002) I MPLJ 243 (MP) ). Chapter XX deals with trial of summons-cases by Magistrates. Chapter XX does not make any provision for discharge of the accused, but section 258 very clearly specifies that at any stage of the trial, the Magistrate may stop the proceedings. In a summary trial, the procedure prescribed for summons-case has to be followed, the accused can be discharged under Section 258, Cr.P.C. Chapter XX does not empower the JMFC to review its own order and the present application filed by the respondent under Section 245, Cr.P.C. is not maintainable and the learned Magistrate has committed an error in allowing the same and dismissing the complaint. ( 7. ) Learned counsel for the respondent drew my attention to the provisions of Sections 239 and 245, Cr.P.C. and submitted that the application filed by the respondent is not an application for review. The respondent after receipt of the summons from the trial Court brought certain facts to the knowledge of the trial Court. The learned trial Court considered the same and dismissed the complaint as barred by limitation by the impugned order dated 30.7.07. He further submitted that under Section 245, Cr.P.C., the learned Magistrate is empowered to decide the application and discharge the respondent. ( 8. ) Section 239 and 258 of the Code of Criminal Procedure reads as under :- "239. The learned trial Court considered the same and dismissed the complaint as barred by limitation by the impugned order dated 30.7.07. He further submitted that under Section 245, Cr.P.C., the learned Magistrate is empowered to decide the application and discharge the respondent. ( 8. ) Section 239 and 258 of the Code of Criminal Procedure reads as under :- "239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 258. Power to stop proceedings in certain cases. - In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, an in any other case, release the accused, and such release shall have the effect of discharge." ( 9. ) A mere reading of Criminal Procedure Code indicates that the provisions of this section are application for the trial of warrant cases by Magistrates. Undisputedly, the criminal cases registered against the respondent is summon case and therefore the provisions of section 239 Cr.P.C. do not attract in the present case pending against the respondent. It is also clear from the perusal of section 258 Cr.P.C. that though the provisions of section 258 Cr.P.C. are applicable in summons cases but only in those summons cases which are instituted otherwise than upon complaints. Undoubtedly, the present criminal case has been instituted upon complaint filed by the petitioner. It is, therefore, abundantly clear that the provisions of these two sections do not apply in the present criminal case and therefore the learned Magistrate has committed error in allowing the application filed by the respondent under section 245 of Cr.P.C. ( 10. Undoubtedly, the present criminal case has been instituted upon complaint filed by the petitioner. It is, therefore, abundantly clear that the provisions of these two sections do not apply in the present criminal case and therefore the learned Magistrate has committed error in allowing the application filed by the respondent under section 245 of Cr.P.C. ( 10. ) The Honble Apex Court in the case of Adalat Prasad v. Rooplal Jindal and others (2004) 7 SCC 338 has held that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203, Cr.P.C., because the Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482, Cr.P.C. ( 11. ) Here in the present case notice was issued in time on 15.12.06. Clause (c) of proviso to Section 138 provides that the Section shall not apply unless the drawer of the cheque fails to make payment within 15 days of the receipt of the said notice. The respondent failed to pay the amount within 15 days and gave an assurance for payment of the amount upto 15.3.07. The petitioner waited for the said period filed the complaint on 2.11.07 and assigned reasons in Para 4 and 5 of the complaint for condonation of delay as to why the petitioner has not filed the complaint within the stipulated time. The learned Magistrate is empowered to condone the delay as per Proviso to clause (b) of Section 142 of the Nl Act, which came into force on 6.2.2003. ( 12. ) Thus, for the above mentioned reasons, I am of the considered view that the learned JMFC abused the process of law in allowing the application filed by the respondent under Section 245, Cr.P.C. and committed legal error in rejecting the complaint. The impugned order is not sustainable and is accordingly set aside. This application under Section 482, Cr.P.C. is allowed. The impugned order is not sustainable and is accordingly set aside. This application under Section 482, Cr.P.C. is allowed. The respondent is at liberty to raise the question of limitation and it is open to respondent to prove at trial before the trial Court, who will decide it in accordance with law. With the aforesaid, this petition is disposed of. Petition disposed of.