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2013 DIGILAW 223 (ORI)

M. v. Naresh Kumar VS Axess Medicom Pvt. Ltd.

2013-07-19

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. Accused No.2 being the petitioner seeks to quash the order dated 24.1.2011 passed by the learned S.D.J.M. (S), Cuttack in ICC No.1128 of 2010 whereby cognizance has been taken against him for the offence under Section 138 of the N.I. Act. 2. Complainant-opposite party filed a complaint petition being ICC No.1128 of 2010 before the learned S.D.J.M. (S), Cuttack against the accused-petitioner on the allegation of bouncing of a cheque amounting to Rs.73,279/-vide Annexur-2. 3. The accused-petitioner assails the order of cognizance solely on the ground that in view of insertion of proviso to clause (a) of Section 142 pursuant to the Negotiable Instruments (Amended and Miscellaneous Provision) Act, 2002 and since there is delay of three days in filing the complaint case, the impugned order of cognizance is liable to be quashed. 4. Sub-section (b) of Section 142 of the Negotiable Instruments Act, 1881 reads as follows: 142. Cognizance of offences-Notwithstanding anything contained in the Code of Criminal Procedure, 1973- (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 the 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.)” The proviso to sub-section (b) of Section 142(b) of the said Act came into force in the year 2002. 5. The complainant had taken a specific stand in paragraph 9 of the complaint petition to the following effect : ”That the complainant pursuant to having issued the letter dtd.30.9.2010 demanding the said cheque amount due to his busy schedule remaining most of the time out of station was unable to contact his advocate timely and inadvertently there has been delay of 3 days in filing this complaint case is filed today after being finalized by the Advocate. The delay is for bonafide reason for which the complainant may be excused in the interest of justice.” It is further stated that the cognizance taken without condoning the delay is justified. 6. The delay is for bonafide reason for which the complainant may be excused in the interest of justice.” It is further stated that the cognizance taken without condoning the delay is justified. 6. The accused-petitioner strenuously urged that it is the admitted case of the complainant-opposite party that there was delay of three days in lodging the complaint and therefore the order taking cognizance without issuing notice to the petitioners and without condoning the delay is vitiated and hence the same is liable to be quashed. To substantiate his contention, learned counsel for the petitioner has relied upon the decisions of Uttarakhand High Court in Deep Narain v. Sanjay Kumar Chauhan, 2011(2) Crimes 386 (Uttar.), and the High Court of Jammu and Kashmir at Jammu in Sushant Bakshi v. Manju Ghosh, 2011 (4) RCR (Criminal) 691= 2011(1) JKL 723: IV (2011) BC 209. Referring to the said decisions, he submitted that since the complaint was time barred, before taking cognizance, the learned Magistrate should have heard the accused-petitioner. In the case in hand as it was a time-barred complaint, the other side gets a valuable right and therefore, a time-barred complaint cannot be considered on merit unless the delay is first condoned. However, before condoning the delay the accused was entitled to be heard. 7. Mr. B.K. Mohanty, learned counsel for the accused-petitioner states that the complaint petition having not been accompanied by a separate application for condonation of delay, the impugned order has been passed without considering the same and therefore, the same is liable to be quashed. 8. Mr. Rajjeet Roy, learned counsel appearing for the complainant-opposite party submits that even though the complaint has not filed any separate application for condonation of delay, he has explained the delay of three days in lodging the complaint in paragraph 9 of the complaint petition. Therefore, learned Magistrate should have exercised his power for condonation of delay without insisting upon filing a separate application for the purpose since N.I. Act is a special statute and no separate procedure has been envisaged with regard to filing of any separate application for such purposes. 9. In the present case, it is clearly admitted by the complainant in paragraph 9 of the complaint petition under Annexure-2 that there is delay of three days in lodging the complaint. 9. In the present case, it is clearly admitted by the complainant in paragraph 9 of the complaint petition under Annexure-2 that there is delay of three days in lodging the complaint. That apart, while passing the impugned order taking cognizance against the accused-petitioner, the learned Magistrate has neither hinted at condoning delay in filing complaint nor has spelt out any reason justifying condonation of delay in filing the complaint in the impugned order although the complainant had indicated the reasons that had delayed the filing of the complaint. Therefore, while entertaining time barred complaint, Court was required to consider complainant’s request in the light of his/her statement on oath and any other material placed by him/ her on record before considering or entertaining or otherwise of complaint and issuance of process against the accused-petitioner. Thus, the learned S.D.J.M.(S), Cuttack had erred in law while passing the order taking cognizance without applying his mind on the complainant’s plea seeking condonation of delay in filing the complaint petition, thereby, the proviso to Sub-Section (a) of Section 142 of the Act has not been taken into consideration. 10. In view of the aforesaid position of law, the impugned order of cognizance passed by the learned S.D.J.M.(S), Cuttack in ICC No. 1128 of 2010 is set aside and the matter is remitted back to the learned Magistrate to consider the question of delay after giving opportunity of hearing to the parties. Ordered accordingly.