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2010 DIGILAW 991 (PAT)

Mohd Muslim v. State Of Bihar

2010-04-27

SHIVA KIRTI SINGH

body2010
JUDGEMENT Shiva Kirti Singh, J. 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the complainant/ O. P. No.2. 2. On behalf of the petitioner a challenge has been made to the entire criminal prosecution as well as to the order of cognizance dated 3-4-1995 passed in complaint case bearing No.576 (c)/94 pending before judicial Magistrate, 1st class, Ara (Bhojpur ). 3. Learned counsel for the petitioner has placed reliance upon provisions of Sec.142 of the negotiable Instruments Act, 1881 (hereinafter referred to as the Act) for advancing an argument that the complaint which alleges offence under section 138 of the Act was filed much beyond the permissible period of one month from the date on which the cause of action arose in terms of clause (c) of the proviso to section 138 and hence, learned Magistrate was debarred from taking cognizance of any offence on the basis of such complaint. 4. In order to appreciate the aforesaid submission, the relevant facts particularly the dates may be noticed in brief. 5. From the records it appears that complainant had advanced an amount of Rs.28,000/- to the petitioner on 2-4-1993 and to repay the same the petitioner issued a cheque for Rs.28,000/- on 31-5-1993. The cheque was dishonoured and legal notice dated 11-9-1993 was received by the petitioner on 13-9-1993, since he did not pay the amount in question within 15 days as required by law and the notice, cause of action arose on behalf of the complainant on expiry of 15 days of the notice and within the permissible period of one month, a complaint case bearing no.542 (c)/1993 was filed on 28-10-1993. That case was dismissed for non prosecution on 16-8-1994. Thereafter the present complaint case was filed on 5-10-1994 and on such second complaint the impugned order of cognizance was passed on 3-4-1995. 6. Learned counsel for the petitioner has placed reliance on the aforesaid dates available in the records to submit that the second complaint, though not barred in law, was clearly beyond the permissible period of one month as provided under section 142 (b) of the act, according to which for cognizance such complaint must be made within one month of the date on which the cause of action arose under clause (c) of the proviso to section 138. 7. 7. On the other hand, learned counsel for the complainant submits that the period of limitation provided under section 142 of the Act should be treated as directory because in 2002 by an amendment the legislature has given discretion to the Magistrate to extend the period of limitation in appropriate cases by adding the proviso to clause (b) of Sec.142. 8. A plain reading of Sec.142, as it stood before the amendment in 2002, leaves no scope to hold the bar of limitation as directory. The bar is in express terms prohibiting any court to take cognizance of offence under section 138 of the Act unless such complaint is made within one month of the date on which cause of action arose. It was, apparently, only to soften the rigour of such mandatory provision that Legislature had to intervene again by making an amendment and by adding the proviso in the year 2002. By its nature a period of limitation prescribed by statute has to be treated as mandatory and in case of hardship the court has to look forward to provisions under the concerned Act if the court wants to condone the limitation. In absence of any provision for condonation of the limitation which had expired before the amendment in the year 2002, limitation of one month could not be ignored or extended by the concerned court. Hence, this issue is decided in favour of the petitioner. 9. Learned counsel for the State has submitted that since there is no legal bar in maintaining second complaint petition in appropriate circumstances, hence the second complaint petition in this case should be treated as a continuation of the first complaint petition which was dismissed for non prosecution. Such a consequence can easily be accepted if a complaint petition or any lis is restored by the superior court or by the court which has dismissed the case, if there be power to restore the application for good reasons. Where the earlier case is not restored for want of power or for any reason, it will not be possible to treat the second petition as a continuation of the first complaint petition. That would amount to circumventing the law prescribing limitation, enacted by a competent Legislature. Where the earlier case is not restored for want of power or for any reason, it will not be possible to treat the second petition as a continuation of the first complaint petition. That would amount to circumventing the law prescribing limitation, enacted by a competent Legislature. In the context of offence under section 138 of the Act there have been catena of judgements to the effect that once a cause of action has arisen, the limitation will begun to run and it could not be stopped by presenting the cheque again so as to have a fresh cause of action and fresh limitation. 10. On considering the submissions advanced on behalf of parties, it is held that the second complaint was filed beyond the period of limitation and the cognizance was also barred on account of limitation prescribed under section 142 of the Act. Hence, this application is allowed. The entire criminal prosecution including the order of cognizance are hereby quashed.