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Madhya Pradesh High Court · body

2012 DIGILAW 499 (MP)

C. K. Chawla v. Shishir Jain

2012-05-07

R.C.MISHRA

body2012
JUDGMENT : This order shall govern disposal of both the petitions, under Section 482 of the Code of Criminal Procedure (for short 'the Code') as they raise a common question of law, formulated as under :- "Whether a Magistrate is required to afford opportunity of hearing to "the accused before condoning delay in filing complaint relating to dishonour of cheque, under proviso to clause (b) of Section 142 of the Negotiable Instruments Act, 1881 (for brevity 'the Act')." 2. The petitioner is aggrieved by the following orders passed in each one of the cases, registered as Complaint Case Nos. 13364/10 and 13365/10 :- (i) Order dated 2-11-2010 authored by Shri Nitin Kumre, JMFC, Jabalpur, whereby cognizance of the offence was taken, while condoning delay of 25 days in filing the complaint. (ii) Order dated 15-12-2011 authored by Shri Nisar Ahmad, JMFC, Jabalpur, whereby application moved by the petitioner for reviewing the order dated 2-11-2010, was rejected as not maintainable. 3. At the outset, it may he observed that the orders passed on 15-.12-2(111 are to be upheld simply because the offence, under Section 138 of the Act, is triable by summon procedure that does not contemplate any stage of discharge after taking the cognizance thereof. Accordingly, the only course available to challenge the issuance of process is by invoking Section 482 of the Code (Adalat Prasad Vs. Rooplal Jindal, AIR 2004 SC 4674. referred to). 4. For a ready reference. Section 142 of the Act may be reproduced thus :- "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 Section 138 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 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 Section 138." (Emphasis supplied) 5. (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138." (Emphasis supplied) 5. Assailing legality and propriety of the orders passed on 2-11-2010, learned Counsel of the petitioner has submitted that even in absence of specific provision in the Act, requiring the Magistrate to give an opportunity of being heard to the accused before condoning delay in presenting the complaint, such an opportunity ought to have been granted in accordance with the principles of natural justice as the condonation affects a valuable right accrued to the accused with expiry of prescribed period of limitation. To buttress the contention, implicit reliance has been placed on the decision of this Court in Krishna Vs. State of M.P., 1977 Cri.LJ 90, that has been followed by the Calcutta High Court in Gautam Kumar De Vs. M/s Prime Movers Auto Associates (P) Ltd., 2009 (3) Crimes 524, as well as by the Chhattisgarh High Court in Cyan Chanel Jain Vs. Anand Bafane, 2011 (1) CC 380. 6. In reply, learned Counsel for the respondent has pointed out that the proviso clearly suggests that condonation of delay is a matter between the complainant and the Court and therefore, the accused is not entitled to participate in the corresponding inquiry. 7. To appreciate the merits of rival contentions in a proper perspective, it would he necessary to advert to the Legislative history, ohject, hasic scheme and other provisions of the Act relevant for the purpose of present discussion. 8. The proviso was inserted by Section 9 of Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 w.e.f. 6-2-2003. The relevant extracts of statement of objects and reasons read :- "The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. ..... Keeping in view the large number of complaints under the said Act pending in various Courts, a Working Group was constituted to review Section 138 of the Negotiable Instruments Act, 1881 and make recommendations as to what changes were needed to effectively achieve the purpose of that section. 3 *** *** *** 4. Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, 1 inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely : (i) *** *** *** (ii) *** *** *** (iii) to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act; *** *** *** (xi) *** *** *** 5. The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques.......,......and....................." 9. Relying on statement of objects and reasons as well as speech of Finance Minister in course of debate on the Bill in Lok Sabha, the Supreme Court in Mandvi Co-op. Bank Ltd. (M/s) Vs. Nirnesh II. Thtikore, AIR 2010 SC 1402 , has pointed out that :- "If the Legislature in their wisdom did not think 'it proper to incorporate a word 'accused' with the word 'complainant' in Section 145 (1) of the Act, it was not open to the High Court to fill up the self-perceived blank." 10. The ratio which emerges from the decision is that it is the duty of the Court to adopt construction of any provision of the Act, which advances object of the Legislation. Further, as emphasized in Shri Ishar Alloy Steels Ltd. Vs. The ratio which emerges from the decision is that it is the duty of the Court to adopt construction of any provision of the Act, which advances object of the Legislation. Further, as emphasized in Shri Ishar Alloy Steels Ltd. Vs. Jayciswals Neco Ltd., (2001) 3 SCC 609 :- "The main object of the Act is to legislate the system by which instruments contemplated by it could pass from hand to hand by negotiation like any other goods. The purpose of the Act was to present an orderly and authoritative statement of the leading rules of law relating to the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the Legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special procedure in case the obligation under the instrument was not discharged. It has always to be kept in mind that Section 138 of the Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that no-one can ingeniously or insidiously or guilefully or strategically be prosecuted." 11. The Apex Court had the occasion to deal with the proviso to clause (b) of Section 142 of the Act in Subodh S. Scilaskar Vs. Jayprakash M. Shah, AIR 2008 SC 3086 . It was pointed out that :- "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." (Emphasis added) 12. 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." (Emphasis added) 12. In this view of the matter, the ruling in Krishna's case (supra), that related to provisions of Sections 468 and 473 of the Code, is of no relevance to a prosecution for the offence under Section 138 of the Act. Needless to say that construction of the proviso, by drawing analogy from the decision in Krishna's case (supra), as has been done in other cases cited by learned Counsel for the petitioner, also deserves to be ignored as being in conflict with the guideline laid down by the Supreme Court for interpreting the provisions of the Act, in the aforesaid cases. 13. To sum up, in absence of any provision enabling the accused to participate in the inquiry into condonation of delay in filing of the complaint for the offence under the Act, which is a special statute, the matter lies exclusively between the complainant and the Court. It is only after the process is issued that an accused can question legality or otherwise of the order condoning delay on the ground that no sufficient cause was shown for not making a complaint within the period prescribed by clause (b) of Section 142 of the Act. 14. The question posed above is, therefore, answered in the negative. 15. A bare of the record would reveal that in each case, an affidavit sworn in by the respondent was filed in support of his application for condonation of delay on the ground that while undergoing treatment for jaundice with typhoid, he had to remain bedridden for 30 days. 16. It is well settled that while considering the question of condonation of delay, the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice. 17. For these reasons, no interference with the impugned orders is called for under the inherent powers. 18. In the result, the petitions are dismissed. As an obvious consequence, interim stay orders dated 8-2-2012 stand vacated. A copy of this order be retained in the connected M.Cri.C.