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2016 DIGILAW 1597 (RAJ)

Kalu Ram S/o Shri Indraj Ram v. Bheem Singh S/o Shri Maniram

2016-11-10

P.K.LOHRA

body2016
ORDER : P.K. Lohra, J. 1. By the instant Misc. Petition, accused-petitioners have challenged the impugned order dated 09.06.2010 passed by Additional District and Sessions judge No. 2, Sri Ganganagar (for short, learned revisional Court) affirming the order of cognizance passed by Additional Chief Judicial Magistrate, Sri Ganganagar on 02.06.2009. Precisely, the revisional order as well as the order passed by learned trial Court are challenged by the petitioner on the ground that complaint laid by the respondent-complainant was premature in terms of Section 138 of the Negotiable Instruments Act, inasmuch as, the same was filed before expiry of the grace period which was available to the petitioners for making payment of the debt or liability. 2. The petition was admitted on 11.01.2013 and thereafter, it was deferred for eight weeks on 26.08.2013 awaiting decision of larger Bench of Supreme Court in case of Yogendra Pratap Singh. 3. It is submitted by learned counsel for the parties in unison that larger Bench of Supreme Court has decided reference and the judgment aforesaid is reported in 2014 Cr.L.R. (SC) 977. The larger Bench was seized with two questions which are reproduced as under:- "(i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? (ii) If answer to question No. 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired?" 4. While answering these two questions, the Court has held:- "Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly." 5. In view of decision rendered in Yogendra Pratap Singh (supra) by the larger Bench of Supreme Court, the impugned order passed by the learned revisional Court as well as by the learned trial Court taking cognizance against the petitioner for offence under Section 138 of the Negotiable Instruments Act cannot be sustained and accordingly, both these orders are annulled. In the light of Supreme Court verdict (supra), the respondent- complainant is set at liberty to lay fresh complaint in accordance with law. In the light of Supreme Court verdict (supra), the respondent- complainant is set at liberty to lay fresh complaint in accordance with law. Learned trial Court is expected to consider the question of limitation as observed by the Supreme Court in terms of Section 142(b) of the N.I. Act.