Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 174 (GAU)

Gautam Saikia v. Diganta Sarmah

2008-02-28

I.A.ANSARI

body2008
JUDGMENT Iqbal Ahmed Ansari, J. 1. The opposite party herein lodged a complaint against the present petitioner, as accused, for his prosecution under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act), the complainant's case being, in brief, thus the accused issued one cheque, dated 25.10.2005, for Rs. 1,10,000/- drawn on UCO Bank, Rajgarh Road Branch, Guwahati in favour of the complainant, the cheque having been drawn in discharge of the lawful debts of the accused. The complainant deposited the cheque, on 26.10.2005, in his account maintained with the ICICI Bank Ltd., Guwahati, for encashment. The said cheque was dishonoured on the ground, inter alia, of insufficiency of fund in the account of the accused and the Banker of the complainant returned the cheque to the complainant by a Memo, dated 26.10.2005, which was received by the complainant on 10.11.2005. Following the dishonour of the cheque, the complainant sent a notice, dated 22.11.2005, by registered post with A/D, addressed to the accused, demanding payment of the amount, covered by the said cheque, within a period of fifteen days from the date of receipt of the said notice. Though the accused had duly received the said notice, he did not make payment and he is, according to the complainant, liable for prosecution under Section 138 of the N.I. Act. 2. The above complaint gave rise to Complaint Case No. 11321C/2006. By his complaint, the complainant also sought for condonation of delay on the ground that he had remained under medical treatment for two months in the State of Assam and, as such, he could not file complaint in time. While making the prayer for condonation of delay, the complainant also submitted that the delay in lodging the complaint was unintentional and for compelling circumstances and, hence, the delay be condoned with effect from 15.12.2005 to 17.2.2006. 3. The complainant was examined under Section 200, Cr. P.C. by the learned Additional Chief Judicial Magistrate, Guwahati. Following the examination, learned Chief Judicial Magistrate passed an order, on 28.2.2006, observing that the complaint, in question, related documents and also the statement of the complainant, recorded under Section 200, Cr. P.C, disclose a prima facie case for prosecution of the accused under Section v of the N.I. Act. The learned Chief Judicial Magistrate accordingly directed issuance of summons to the accused. P.C, disclose a prima facie case for prosecution of the accused under Section v of the N.I. Act. The learned Chief Judicial Magistrate accordingly directed issuance of summons to the accused. It is the order, dated 28.2.2006, which stands impugned in the present criminal petition made under Section 482, Cr. P.C. 4. I have heard Mr. N. Nath, learned Counsel for the accused petitioner, and Mr. N.N. Jha, learned Counsel, appearing on behalf of the complainant-opposite party. 5. Presenting the case on behalf of the accused-petitioner, Mr. Nath has pointed out that though the proviso, to Clause (b) of Section 142 of the N.I. Act permits taking of cognizance on the basis of a complaint even after it has been filed after expiry of the period of limitation, the fact remains that taking of such cognizance is not permissible without condoning the delay as have been specified therein. In the present case, further points out Mr. Nath, as the learned Court below took cognizance of an offence under Section 138 of the N.I. Act without condoning the delay, the taking of such cognizance is wholly illegal and, hence, the order directing issuance of summons to the accused-petitioner is not sustainable in law. The order, dated 28.2.2006, may, therefore, submits Mr. Nath, be set aside and the complaint be quashed. It is also pointed out by Mr. Nath that condonation of delay is not possible without giving an opportunity of hearing to the person, who is sought to be prosecuted, for, on expiry of the prescribed period of limitation, a right accrues to the accused not to be prosecuted for an offence, under Section 138, unless the delay is condoned by the Court on sufficient ground having been shown for the delay. In support of his submission that an accused must be given notice before the delay in making the complaint is condoned, Mr. Nath has placed reliance on State of Maharashtra vs. Sharad Chandra Vinayak Dongre and other, (1994)4 CCR 775 (SC): AIR 1995 SC 231 . 6. Resisting the submissions, made on behalf of the accused-petitioner, Mr. In support of his submission that an accused must be given notice before the delay in making the complaint is condoned, Mr. Nath has placed reliance on State of Maharashtra vs. Sharad Chandra Vinayak Dongre and other, (1994)4 CCR 775 (SC): AIR 1995 SC 231 . 6. Resisting the submissions, made on behalf of the accused-petitioner, Mr. N.N. Jha, learned Counsel, submits that the complainant had assigned sufficient cause seeking condonation of delay and, in the light of the provisions of the proviso to Clause (b) of Section 142, it is not necessary to serve any notice to show cause or hearing to the person, who is sought to be prosecuted. Reliance, in support of this submission, is placed by Mr. Jha on Muraleedharan vs. Sreeram Investment Ltd. (2006)3 BC 316: (2007)1 CCR 249: 2006 (39) AIC 894 (Kerala). 7. For the purpose of correctly appreciating the controversy involved in this criminal petition, it is necessary to take note of the provisions relating to extension of the period of limitation under the N.I. Act. With this end in view, Section 142 of the N.I. Act is reproduced herein-below: 142. Cognizance of Offences – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). (a) No Court shall take cognizance of any offence punishable under Section138 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 the Clause (c) of the proviso to Section 138: 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. (c) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section138. 8. A bare perusal of the proviso to Clause (b) of Section 142 of the N.I. Act clearly shows that the cognizance of an offence, on the basis of a complaint, may be taken after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making the complaint within the prescribed period. 8. A bare perusal of the proviso to Clause (b) of Section 142 of the N.I. Act clearly shows that the cognizance of an offence, on the basis of a complaint, may be taken after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making the complaint within the prescribed period. This, in turn, shows that cognizance of an offence, under the N.I. Act, is not possible if the complaint is filed after the prescribed period of limitation expires unless the complainant satisfies the Court that he was prevented by sufficient cause from making the complaint. Thus, the effect of the Proviso (b) to Section 142 is that unless the Court decides to condone the delay in making the complaint, cognizance of offence under Section 138 cannot be taken. This, in turn means that the burden lies on the complainant to satisfy the Court that he was prevented by sufficient cause from making the complaint. 9. In the present case, the learned Court below has, admittedly, not condoned the delay, though a prayer has been made by the complainant seeking condonation of the delay. Logically, therefore, without condoning the delay, cognizance of offence under Section 138 of the N.I. Act could not have been taken and no direction to issue process could have been passed. Considered, thus, it is clear that the order, dated 28.2.2006, cannot be sustained. 10. Coupled with the above, what needs to be pointed out is that there is apparent difference between the scope of condonation of delay in respect of an offence to which the provisions of Code of Criminal Procedure apply and the scope of condonation of delay in respect of an offence punishable under the N.I. Act. In order to appreciate this difference, Section 473 of the Code needs to be taken note of Section 473 reads: Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. 11. 11. A combined reading of the provisions contained in Section 473 of the Code, on one hand, and the proviso to Clause (b) of Section 142, an the other hand, clearly shows that while it is, by virtue of the provisions of Section 473, possible for a Court to take cognizance of an offence beyond the prescribed period of limitation on its own notion and in the interest of justice, cognizance of offence, on the basis of a complaint under the N.I. Act, cannot be taken if the taking of cognizance is barred by limitation unless the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Thus, condonation of delay by the Court, on its own motion, in respect of an offence, under the N.I. Act, is not permissible. There are rational reasons for making this distinction inasmuch as Section 473, Cr. P.C. derds with cases, which may be initiated on the basis of a complaint, and also such cases, which may arise out of submission of a police report in terms of Section 173(2)(i). 12. It is also worth noticing that in Sharad Chandra Vinayak Dongre (supra), the Apex Court has made it clear that condonation of delay is not permissible, under Section 473, Cr. P.C, without giving notice of hearing to the person, who is sought to be prosecuted. There is no reason as to why the same principle shall not be applicable to a case under the N.I. Act, for, under the N.I. Act too, a right not be prosecuted accrues in favour of the person, sought to be prosecuted, unless the complainant can show sufficient cause for belatedly making the complaint and it is for this reason that unlike Section 473, a duty is cast on the complainant to satisfy the Court that there was sufficient cause for delay in filing the complaint. 13. What emerges from the above discussion is that the order, dated 28.2.2006, taking cognizance of an offence under Section V, N.I. Act is contrary to the requirements of the proviso to Clause (b) of Section 142 thereof. This order, therefore, cannot, as already indicated above, be sustained. At the same time, the complaint, in question, cannot be quashed, when it discloses commission of offence under Section 138, N.I. Act. This order, therefore, cannot, as already indicated above, be sustained. At the same time, the complaint, in question, cannot be quashed, when it discloses commission of offence under Section 138, N.I. Act. The remedy, therefore, lies in giving a notice to the accused-petitioner and, then, to decide, upon hearing both the complainant as well as the accused, if the delay deserves to be condoned. 14. Considering, therefore, the matter in its entirety and in the interest of justice, the order, dated 28.2.2006, is hereby set aside and the complaint case is remanded to the learned Court below with direction to hear the complainant as well as the accused-petitioner on the question of condonation of delay. 15. In order to avoid any further delay in disposal of the complaint case, the petitioner as well as the opposite party herein are hereby directed to appear in the Court below on 12.3.2008. On the appearance of the parties, as directed hereinbefore, the learned Court below shall hear both the parties on the question of condonation of delay and pass appropriate order(s) thereon. No fresh notice, fixing a date for hearing on the question of condonation of delay, need be issued to the parties concerned. 16. With the above observations and directions, this Criminal Petition stands disposed of. 17. Send back the LCR.