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2009 DIGILAW 2489 (MAD)

S. Janaki v. R. Thiagarajan

2009-07-20

ARUNA JAGADEESAN

body2009
Judgment :- The Petitioner is the accused in CC.NO.333/2005 on the file of the learned Judicial Magistrate, Tiruvarur and is facing criminal proceedings for the offence under Section 138 of the Negotiable Instruments Act. .2. According to the Petitioner, her husband, who was awarded a contract for carrying out repair work in the Office of the District Manager, TAHDCO, Tiruvarur Town, entered into an agreement with the Respondent to do the said work as a sub-contractor for a sum for Rs.25,000/-, since the Respondent had to invest the amount for the project and the cheques were to be issued in the name of the Petitioners husband. In order to realise the amount, the Respondent had obtained two blank cheques as security. It is the further case of the Petitioner that after the contract work was completed, her husband took the Respondent to the TAHDCOs Regional Office at Trichy and on receiving cheques for Rs.88,664/- and Rs.73411/- in two installments, handed over them to the Respondent, but the Respondent did not return the cheques issued by the Petitioner and her husband, despite the demand made on various occasions. They had come to know that the cheques were presented for encashment and they had been returned unpaid due to insufficient funds in her account only through the lawyers notice issued by the Respondent dated 11. 2004. The Respondent has initiated criminal proceedings under Section 138 of the Negotiable Instruments Act against the Petitioner and she has challenged the said proceedings inter alia on the ground that there was a delay of 106 days in filing the complaint, for which no application was filed for condoning the delay, but the learned Magistrate has taken cognizance of the complaint directly without being satisfied himself as to whether there was sufficient cause to condone the delay. 3. The learned counsel for the Petitioner contended that ex-facie the complaint was barred by limitation, as there was no application filed for condoning the delay and the cognizance taken by the learned Magistrate is unsustainable. In support of his contention, the learned counsel relied upon the decisions of this court rendered in the cases of (1) R.Kanthimathi and two others Vs. Bank of India, Dharmapuri Branch by Senior Manager [2007-4-CTC-524], (2) Nataraj @ T.Natarajan Vs. P.Venkatachalam [2008-1-CTC-503] and (3) C.K.Mahalingam Vs. In support of his contention, the learned counsel relied upon the decisions of this court rendered in the cases of (1) R.Kanthimathi and two others Vs. Bank of India, Dharmapuri Branch by Senior Manager [2007-4-CTC-524], (2) Nataraj @ T.Natarajan Vs. P.Venkatachalam [2008-1-CTC-503] and (3) C.K.Mahalingam Vs. R.Palanisamy [2008-2-CLT-669], wherein this court has held that the cognizance taken by the learned Magistrate after the prescribed period of limitation without following the procedure prescribed under the special enactment is without any sanction of law, which is liable to be quashed. .4. In view of the proviso to Section 142(b) of the Negotiable Instruments Act, it has become permissible for the complainant to file an application for condoning the delay on complaint being filed beyond the period of limitation and on such application being filed, the learned Magistrate has a discretion to condone the delay, if sufficient cause is made out for not making the complaint within the period prescribed in clause (b). Admittedly, in this case, the complaint has been taken on file straightway, though there was a delay of 106 days in filing the complaint without following the procedure prescribed under Section 142(b) of the Negotiable Instruments Act. 5. The complainant has not filed any application setting out the reasons for the delay caused, though he has stated in the complaint that he had been making efforts to receive the amount from the accused, which resulted in the delay. When an application for condonation of delay is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declining the same. Undoubtedly, a right accrues in favour of the accused when there is a delay in lodging the complaint. But that right has been lost to the Petitioner. It is true that it is only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused, who cannot be shut out from such proceedings. Though the accused is out of picture till the complaint is taken cognizance of by the Court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. Though the accused is out of picture till the complaint is taken cognizance of by the Court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. Therefore, the court exercising its discretion under the proviso to the aforesaid provision of law is empowered to make a dent in such right of the accused by extending the period of limitation on satisfying itself of the reasons assigned by the complainant. Therefore, the complainant should file an affidavit, setting forth the reasons for the delay and the discretion of the court to condone such a delay can be exercised only after affording an opportunity to the accused to contest the reasons assigned by the complainant. But, in the instant case, the learned Judicial Magistrate, before taking cognizance and recording sworn statement, has not given an opportunity for the Petitioner/accused to contest the application and straightway taken cognizance without notice to the accused, which is opposed to principles of natural justice. 6. In the decisions cited supra, this court has granted liberty to the complainant to file an application for condonation of delay and directed the learned Judicial Magistrate to dispose of the application on merits. This court has viewed in the decision cited supra barring the case reported in C.K.Mahalingam Vs. R.Palanisamy (2008-2-CLT-669) that it is a curable defect and declined to quash the complaint. 7. But in a recently reported decision rendered in the case of Subodh S. Salaskar Vs. Jayaprakash M.Shah and another [AIR-2008-SC-3086] the Honourable Supreme Court has held that the provisions of the Negotiable Instruments Act being special in nature, conferring jurisdiction upon the court to condone the delay under Section 142 of the Negotiable Instruments Act, is only a substantive provision and not a procedural one and therefore, it could not be given a retrospective effect or retroactive operation. It is held thus:- "24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation." 8. In view of the law laid down by the Honourable Supreme Court, the proviso to Clause (b) of Section 142 of the Negotiable Instruments Act has been inserted, conferring jurisdiction upon the court to condone the delay, in case if the complaint was not filed within the limitation period of 30 days in terms of the proviso appended thereto. As the said provision has been held to be a substantive provision and not a procedural one, the complaint being filed beyond the period of limitation, it cannot be entertained by allowing the Respondent to file an application after it has been taken cognizance of by the learned Magistrate. That being so, the cognizance taken by the learned Judicial Magistrate is without any sanction of law and therefore, I am of the considered opinion that it deserves to be quashed and accordingly, it is quashed. This Criminal Original Petition stands allowed. Consequently, the connected MP is closed.