Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 706 (MP)

Keshav Chouhan v. Kiran Singh

2014-06-23

J.K.JAIN

body2014
ORDER : J.K. Jain, J. This is an application under Section 378(4), Cr.P.C. for leave to appeal against the judgment dated 19-12-2012 passed by XIII ASJ, Indore in Cr. Appeal No. 139/2012 whereby learned ASJ has acquitted the non-applicant from the charges under Section 138 of the Negotiable Instruments Act (hereinafter referred as "the Act" for brevity) and set aside the conviction and sentence passed by the learned JMFC, Indore in Cr. Case No. 1352/06 on 23-1-2012. Facts in brief are that applicant has filed a complaint under Section 138 of Negotiable Instruments act alleging that on 27-4-2006, non-applicant gave a cheque of Rs. 50,000/- to applicant which was bounced by the bank for want of sufficient funds. Thereafter, on 5-5-2006, applicant sent a notice to the non-applicant but the applicant did not receive any acknowledgment to the notice. Subsequently, Customer Care Centre of Postal Department vide letter dated 10-7-2006 informed the complainant that the registered notice has been delivered on 6-5-2006 to non-applicant. Meanwhile on 29-6-2006 a complaint under Section 138 of the Act was filed against the non-applicant before the Court of JMFC, Indore. Learned JMFC took cognizance on the basis of complaint and the non-applicant was put to trial. At the stage of defence evidence, the applicant moved an application under Section 5 of the Limitation Act praying for condoning the delay of 8 days in filing the complaint. Learned JMFC allowed the application and condoned the delay, thereafter non-applicant preferred a Criminal Revision bearing No. 392/11 before the ASJ challenging the order of condonation of delay. Learned ASJ vide order dated 26-8-2011 allowed the revision and gave a finding that since proviso to the Section 142(b) of the Act provides for condoning delay and hence application under Section 5 of Limitation Act is not maintainable. Moreover, at the stage of defence evidence, such application was not maintainable. 2. Thereafter the JMFC proceeded in the matter with a view that once he took the cognizance in the matter he cannot retreat from it and further he recorded a conviction and passed sentence of six months imprisonment and awarded compensation of Rs. 70,000/- (Rupees Seventy Thousand) under Section 357(3), Cr.PC. Being aggrieved the non-applicant preferred Criminal Appeal No. 139/12 against such conviction before the XIII ASJ, Indore. 3. 70,000/- (Rupees Seventy Thousand) under Section 357(3), Cr.PC. Being aggrieved the non-applicant preferred Criminal Appeal No. 139/12 against such conviction before the XIII ASJ, Indore. 3. Learned ASJ, vide order dated 19-12-2012 allowed the appeal and set aside the conviction passed by learned JMFC on the ground that the complaint was time barred and no application was filed as per proviso of Section 142(b) of the Act. Against the order of acquittal the complainant/applicant has filed the instant application seeking leave to appeal. 4. Learned Counsel for the applicant submitted that provision of Section 142 of the Act should not be strictly construed and after taking the cognizance, the objection with regard to limitation cannot be agitated particularly when the applicant has satisfactorily explained the delay by filing the application under Section 5 of the Limitation Act. Therefore, order of acquittal passed by the learned ASJ solely on the ground that the application for condonation of delay at the defence stage was not maintainable, is illegal. There is no stage provided in the statute for filing an application for condonation of delay, therefore, leave to appeal be granted. 5. Learned Counsel for the non-applicant vehemently opposed the application and submitted that admittedly, the complaint was time barred by 6 days and no application was filed for condonation of delay as per the proviso of Section 142(b) of the Act and, therefore, the Magistrate was not competent to take cognizance on a time barred complaint. Provisions of Section 5 of Limitation Act are not applicable to the complaint under Section 138 of the Act. Thus, there is no illegality in the order of acquittal passed by the learned ASJ. 6. I have considered the rival contentions of both the parties and perused the record. 7. It is admitted fact that the notice was sent on 5-5-2006, which was received by the non-applicant on 6-5-2006. The non-applicant was required to make payment in terms of the said notice within fifteen days, i.e., on or before 21-5-2006, but he failed to comply the notice, therefore, as per Section 138(c) cause of action arose on 22-5-2006. As per the provision of Section 142(b) the complaint must be filed within one month, i.e., on or before 21-6-2006 whereas the complaint was filed on 29-6-2006. Thus, the complaint is barred by 6 days. 8. As per the provision of Section 142(b) the complaint must be filed within one month, i.e., on or before 21-6-2006 whereas the complaint was filed on 29-6-2006. Thus, the complaint is barred by 6 days. 8. In me complaint, it is not mentioned that complaint is time barred by 6 days and no application is filed as per the provision to the Section 142(b) of the Act. The application under Section 5 of the Limitation Act was filed when the case was fixed for defence evidence. 9. Firstly, it has to be seen whether the provisions of Section 5 of the Limitation Act are applicable to the complaint under Section 138 of the Act. 10. Hon'ble Supreme Court in the case of Subodh S. Salaskar Vs. Jayprakash M. Shah and Another, AIR 2008 SC 3086 held as under:- "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. 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, 1973. 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 provisions 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." 11. Hon'ble Supreme Court in the recent judgment of ECON Antri Ltd. Vs. A substantive law, as it is well-settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation." 11. Hon'ble Supreme Court in the recent judgment of ECON Antri Ltd. Vs. Rom Industries Ltd. and Another, AIR 2013 SC 3283 while dealing computation of the period of limitation for the purpose of compliant filed under the Act held as under:- "As the Limitation Act is held to be not applicable to N.I. Act, drawing parallel from Tarun Prasad Chatterjee (supra), where the Limitation Act was held not applicable, we are of the opinion that with the aid of Section 9 of the General Clauses Act, 1897 it can be safely concluded in the present case that while calculating the period of one month which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. It is not possible to agree with the Counsel for the respondents that the use of the two different words 'from' and 'of in Section 138 at different places indicates the intention of the legislature to convey different meanings by the said words." 12. It is clear that the provisions of Section 5 of the Limitation Act are procedural provision whereas the proviso to the clause (b) of Section 142 of the Act is a substantive provision. Thus, provisions of Section 5 of the Limitation Act are not applicable to the complaint under Section 138 of the Act. 13. Now, it has to be seen what is the proper stage for filing an application as per proviso to Section 142(b) of the Act. 14. Madras High Court in the case of Sri Vasudharini Enterprises vs. K. Sundar Ramanujam, in Cri. O.P. Nos. 31536 to 31538/2006, Cr.M.P. Nos. 1, 1, 1/2006 to 1, 1, 1/2007, decided on 23-7-2009 held as under:- "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. 1, 1, 1/2006 to 1, 1, 1/2007, decided on 23-7-2009 held as under:- "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 procedure one, the complaint being filed beyond the period of limitation, it cannot be entertained by allowing the respondents 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." 15. Madras High Court has taken this view in the light of the judgment of Hon'ble Apex Court in the case of Subodh S. Salaskar (supra), therefore, I am of the considered view that an application as per proviso to clause (b) of Section 142 of the Act must be filed along with complaint and such application is not maintainable at subsequent stage, i.e., after taking the cognizance and if the Magistrate took cognizance on the basis of time barred complaint then this defect cannot be cured by filing an application for condonation of delay at later stage. Hon'ble Supreme Court in the case of Subodh S. Salaskar (supra), held that when a time barred complaint is filed under Section 138 of the Act and no application for condonation of delay was filed then a substantive right accrued in favour of accused, therefore, the accused can raise the objection about the limitation at later stage. 16. Thus, I am unable to convince with the arguments of learned Counsel for the applicant that after taking the cognizance the application for condonation of delay can be filed and accused/non-applicant cannot raise the objection with regard to limitation at later stage. 17. In this case, at a defence evidence stage, it was pointed out by the defence that the complaint is time barred, then an application under Section 5 of the Limitation Act for condonation of delay was moved, which was erroneously allowed by the Magistrate. 17. In this case, at a defence evidence stage, it was pointed out by the defence that the complaint is time barred, then an application under Section 5 of the Limitation Act for condonation of delay was moved, which was erroneously allowed by the Magistrate. The order was challenged in revision and the learned ASJ has set aside the order. Even though, learned Magistrate proceeded further in the trial and recorded the conviction. 18. In these circumstances, Magistrate should have not recorded the conviction as he has erroneously taken the cognizance on a time barred complaint. Learned ASJ in appeal rightly held that the complaint was time barred, therefore, conviction recorded by the Magistrate was illegal, therefore, he acquitted the non-applicant. I found that there is no illegality in the order of acquittal passed by learned ASJ in appeal, therefore, there is no merit in the application for grant of leave to appeal. Thus, the application is dismissed.