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Rajasthan High Court · body

2014 DIGILAW 1867 (RAJ)

B. S. Yadav v. State of Rajasthan

2014-11-19

M.N.BHANDARI

body2014
Hon'ble BHANDARI, J.—By this criminal misc. petition under Section 482 Cr.P.C., a challenge is made to the order passed by the Revisional Court dated 21.07.2014, so as the order dated 01.02.2008 passed by the learned Judicial Magistrate condoning the delay in maintaining complaint under Section 138 of Negotiable Instruments Act (for short “NI Act”, and also the order dated 17.12.2013. 2. It is stated that the complaint filed by the non-petitioner was barred by limitation, thus the Court below should have dismissed it. The court below even failed to consider that notice cannot be given twice to make out a case under Section 138 of NI Act. A reference of the judgment of the Apex Court in the case of Tameeshwar Vaishnav vs. Ramvishal Gupta, (2010) 2 SCC 329 = 2010(1) RLW 873 (SC), is given. 3. It is further stated that the cheque was not issued by the petitioner, thus it does not contain his signature. Even the bank account, for which the cheque was issued, does not belong to the petitioner. In the background aforesaid also, the complaint deserves to be quashed. 4. I have considered the submissions made by the Counsel for the petitioner and perused the record. 5. If the facts of the case are looked into, the cheque sent by the petitioner for its encashment was dishonoured by the bank on 07.08.2006. A legal notice through registered post was sent on 20.08.2006. When the information about receipt of notice was not given by the Postal Department, the petitioner sent another registered notice on 10.10.2006. The information about the receipt of it was also not given. A complaint was then filed on 08.11.2006. The second notice was given in absence of the information regarding receipt of first notice. It is however a fact that when the non-petitioner tried to find out the status of first notice, then lately he was informed about its receipt on 04.09.2006. If the date aforesaid is taken into consideration,the complaint was to be filed beyond limitation, but in absence of information of receipt by the Postal Department, the complainant was left with no option but to send a second notice. Looking to the facts aforesaid, the complaint was entertained with condonation of delay. 6. If the date aforesaid is taken into consideration,the complaint was to be filed beyond limitation, but in absence of information of receipt by the Postal Department, the complainant was left with no option but to send a second notice. Looking to the facts aforesaid, the complaint was entertained with condonation of delay. 6. So far as the judgment of the Apex Court in the case of Tameeshwar Vaishnav(supra) is concerned, it is true that second notice is not tenable as the cause of action arises only once with issuance of notice and receipt thereof by the drawer. Therein, first notice was given on 30.03.2006 and was served, whereas the complaint was filed lately on 10.07.2006. The facts of that case are different than the facts of this case because therein information about the receipt of notice was received by the complainant, yet he did not file the complaint within time whereas, in this case, information of receipt was given lately. Thus, on those facts, the case was decided by the Apex Court. 7. In the background aforesaid, if the complaint has been entertained, it is after considering the lapse of the Postal Department in not furnishing information to the complainant about receipt of notice. The delay was excu-sed and the aforesaid facts have been considered by the Revisional Court. 8. It is necessary to refer the amended provisions of Section 142 of Negotiable Instruments Act and is quoted hereunder for ready reference: “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 Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.)” 9. The perusal of the provision aforesaid give discretion to the court to excuse the delay in maintaining appeal in appropriate cases. As per the provision aforesaid, the delay has rightly been excused by the learned court below, though it should not have been on application under Section 5 of the Limitation Act. The aforesaid has no effect on the outcome of the case because delay in filing of complaint was bonafide and reasonable. Thus, rightly excused by the Court below. 10. The other issue raised by the petitioner is that he had not issued the cheque and it does not contain his signatures, rather no bank account exists. The aforesaid aspects would be considered by the trial Court after taking evidence of the parties and for which, the Revisional Court has already given liberty to the petitioner. It is even for FSL report regarding signature on the cheque etc. 11. In view of the above, even interference cannot be made in the second ground raised by the petitioner. 12. The misc. petition is accordingly dismissed.