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Madhya Pradesh High Court · body

2019 DIGILAW 320 (MP)

Ramniwas Pathak v. Ramjilal Lodhi

2019-04-15

SHEEL NAGU

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ORDER 1. Revisional powers of this Court under section 397 read with section 401, CrPC are invoked assailing the revisional order dated 3.9.2014 passed by ASJ, Picchore, District Shivpuri allowing revision of the accused/respondent herein and in the process, setting aside the order of taking cognizance of an offence u/s. 138 of Negotiable Instruments Act, 1881 (for brevity’ ‘1881 Act') passed by the trial Court on 19.2.2014. 2. Learned counsel for the petitioner is heard on the question of admission and final disposal. 3. The moot question which begs for an answer herein is as to whether in the absence of any subsequent presentation and dishonour of the cheque which has been dishonoured once, is the complaint filed by the complainant after expiry of statutory period of one month u/s. 142 (b) of the 1881 Act, be entertainable based on the plea of complainant that on sending further notices to the accused, assurances were extended by the accused of paying the debt in question. 4. The skeleton facts necessary for disposal of this petition are detailed below in a chronological manner for ready reference and convenience: Date Event 13.12.2012 Date of cheque in question. 1.1.2013 Cheque is presented by petitioner/complainant to the bank. 2.1.2013 The bank informs the petitioner/complainant of dishonour of cheque owing to insufficient funds. 3.1.2013 First notice demanding payment sent by the complainant to the accused. 14.1.2013 The accused receives the first notice. 12.2.2013 Second notice demanding payment sent by the complainant to the accused. 26.3.2013 Third notice demanding payment sent by the complainant to accused. 22.4.2013 Complaint is filed in the Court of JMFC pleading cause of action to have arisen due to non-payment of debt by the accused pursuant to the third demand notice dated 26.3.2013. 19.12.2014 Court of JMFC, without any prayer for condonation of delay, takes cognizance of the complaint treating it to be filed within prescribed period of one month as per section 142 (b) of 1881 Act by treating the cause of action to have arisen on 26.3.2013 when third notice for demand was dispatched by the complainant to accused. 5. 19.12.2014 Court of JMFC, without any prayer for condonation of delay, takes cognizance of the complaint treating it to be filed within prescribed period of one month as per section 142 (b) of 1881 Act by treating the cause of action to have arisen on 26.3.2013 when third notice for demand was dispatched by the complainant to accused. 5. On the aforesaid factual matrix, it is vivid that after the period of one month prescribed u/s. 142 (b) of filing of complaint calculated from the receipt of first notice of demand by the accused on 14.1.2013, the complainant/petitioner did not present the cheque in question again to the bank and instead continued to dispatch further demand notices to accused on the plea that assurance were given by accused of repaying the debt. 6. Learned counsel for petitioner has placed reliance on three Judge Bench decision of this Court in Vipul Shital Prasad Agarwal v. State of Gujarat reported in (2013) 1 SCC 197 with special emphasis to content of paragraph 24 to 35 and to the recent decision of the apex Court in M/s. Sicagen India Limited v. Mahindra Vadineni & Ors. passed in Cr. A. No. 26-27 of 2019 on 8.1.2019 and the judgment of the single bench of this Court in the case of Devdatt Bharadwaj v. Santosh Verma decided on 4.11.2015. 6.1 It is the contention of learned counsel for petitioner that once the prescribed statutory period of one month u/s. 142 (b) for presentation of complaint in the Court expires, the complainant is not obliged to present the cheque again in the Bank and get it dishonoured since the complainant by virtue of proviso of section 142 (b) can always seek condonation of delay in preferring the complainant before the trial Court. 6.2 It is further contended that the repeat demand notices sent by the complainant to the accused, even after expiry of statutory period of 30 days u/S. 142(b) for preferring a complaint before the trial Court, confer fresh cause of action to the complainant to file a complaint. 7. 6.2 It is further contended that the repeat demand notices sent by the complainant to the accused, even after expiry of statutory period of 30 days u/S. 142(b) for preferring a complaint before the trial Court, confer fresh cause of action to the complainant to file a complaint. 7. All the decisions which have been cited by the petitioner/complainant are based on facts where cheque in question had been presented again in the bank but none of these cases cited pertain to the fact situation as prevailing herein where without repeat presentation of cheque in the bank, the complainant has filed a complaint after expiry of the statutory period of 30 days u/s. 142 (b). Thus, none of the cited cases are of any avail to the petitioner. 8. The scheme of the 1881 Act is to the effect that the cause of action to file a complaint u/s. 142 arises when the following contingencies taken place: 1. The cheque in question has been presented to the bank within its validity period or three months, whichever is earlier, 2. The holder of the cheque receives information from bank regarding dishonor of cheque due to insufficient funds in the account of drawer, 3. The holder of cheque sends a notice in writing to the drawer within 30 days of receipt of information of dishonour demanding payment of amount of cheque in question, 4. The drawer fails to make payment within 15 days of receipt of the said notice of the holder, 5. The complaint in writing by the payee or holder of the cheque in question is preferred before the Court of competent criminal jurisdiction within one month of date of arising of cause of action u/s. 138 (c), i.e., failure of the drawer to make payment despite expiry of 15 days of receipt of demand notice. 9. The 1881 Act underwent change by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 with effect from 6.2.2003 when a pressing need was felt for making the provisions of Negotiable Instruments Act, 1881 more effective and less cumbersome. 9.1 One of the objectives of introducing the aforesaid widespread amendments in the 1881 Act were to provide discretion to the Court to waive the period of one month prescribed u/s. 142 (b) of the 1881 Act for taking cognizance of offence u/s. 138 (b) of the 1881 Act. 10. 9.1 One of the objectives of introducing the aforesaid widespread amendments in the 1881 Act were to provide discretion to the Court to waive the period of one month prescribed u/s. 142 (b) of the 1881 Act for taking cognizance of offence u/s. 138 (b) of the 1881 Act. 10. Consequent upon the aforesaid amendment, the following proviso was added to clause (b) of section 142 of the 1881 Act: “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 case for not making a complaint within such period.” The aforesaid proviso thus confers jurisdiction upon the trial Court to take cognizance of a complaint even after the prescribed period of one month u/s. 142 (b) if sufficient cause for the delay is shown. 10.1 Meaning thereby that the trial Court is now vested with discretion to take cognizance of a time-barred complaint alleging offence punishable u/s. 138 of the 1881 Act, provided the complainant demonstrates sufficient cause for delayed approach. This invariably requires an expressed prayer made along with complaint supported by an affidavit detailing the compelling circumstances responsible for delayed approach to the court after expiry of period of limitation u/s. 142 (b). 11. In the instant case, perusal of record received in original from both the Courts below reveals that the complaint which was preferred by petitioner/complainant on 22.4.2013 before the JMFC was preferred on the assumption that the same is filed within the prescribed period of limitation and therefore, was not accompanied with any application for condonation of delay. 11.1 The trial Court treating the complaint to be filed within period of limitation u/s. 142 (b) of the 1881 Act, took cognizance on the complaint on 19.2.2014 by holding that cause of action to the complainant arose on the failure of respondent accused in making payment despite receipt of the third notice of demand dated 26.3.2013. 11.1 The trial Court treating the complaint to be filed within period of limitation u/s. 142 (b) of the 1881 Act, took cognizance on the complaint on 19.2.2014 by holding that cause of action to the complainant arose on the failure of respondent accused in making payment despite receipt of the third notice of demand dated 26.3.2013. 11.2 However, this finding was set aside by the revisional Court by the impugned order dated 3.9.2014 vide Annexure P/1 on the ground that the cause of action u/s. 138 (c) of the 1881 Act had arisen to the complainant on 19.2.2014 and therefore, it was incumbent upon the complainant to have filed complaint within one month therefrom, i.e., latest by 18.3.2014 but instead the complainant filed the complaint as late as on 22.4.2013. Thus, the revisional Court, treating the complaint to be barred by limitation, held that trial Court, had no jurisdiction to take cognizance of the offence contained in the complaint. 12. After having heard the learned counsel for the petitioner and testing the submissions made on the anvil of legal provision as explained above, this Court has no manner of doubt that the complaint which is filed after the period of expiry of one month from arising cause of action u/s. 138(c) of the 1881 Act could not have been entertained or taken cognizance of unless the same is accompanied by an application supported by an affidavit containing the bundle of facts to explain the sufficient reasons which dissuaded complaint to approach the Court within limitation. 13. The fact situation prevailing herein reveals that no such application for condonation of delay was filed along with complaint and therefore, the trial Court could not have taken cognizance of the complaint. However, fact remains that cognizance was taken by the trial Court but the same was rightly upturned by the revisional Court in the impugned order. 14. 13. The fact situation prevailing herein reveals that no such application for condonation of delay was filed along with complaint and therefore, the trial Court could not have taken cognizance of the complaint. However, fact remains that cognizance was taken by the trial Court but the same was rightly upturned by the revisional Court in the impugned order. 14. In view of settled principle of law as explained above, this Court cannot find any legal infirmity, rampant irregularity or impropriety in the order of revisional Court except that in view of proviso to section 142 (b), the revisional Court ought to have afforded an opportunity to the complainant to prefer an application for condonation of delay in filing the complaint before the trial Court and for that matter ought to have remanded the matter to the trial Court for hearing on the complaint on the question of condona-tion of delay. It is trite law that whenever a litigant approaches the Court beyond the period of limitation without making an application for condonation of delay, reasonable opportunity deserves to be afforded to the litigant to prefer an application along with an affidavit explaining the reasons for delay. 14.1 In case the litigant fails to take advantage of this opportunity then, he/she can always be thrown out of the Court but not before a reasonable opportunity for the said purpose is extended. 15. In the case at hand, the revisional Court by rightly holding the complaint to be barred by limitation and therefore, not worth taking cognizance of, in all fairness ought to have afforded opportunity to the complainant to explain the delayed approach by remanding the matter to the trial Court. 16. 15. In the case at hand, the revisional Court by rightly holding the complaint to be barred by limitation and therefore, not worth taking cognizance of, in all fairness ought to have afforded opportunity to the complainant to explain the delayed approach by remanding the matter to the trial Court. 16. In view of above, this Court has no hesitation to uphold the order of the revisional Court to the extent of finding the complaint of the petitioner to be time barred; but to afford an opportunity to complainant to avail the benefit of proviso to section 142 (b) of 1881 Act, it would be apt for this Court to exercise its revisional as well as inherent powers to remand the matter to the trial Court to enable the complainant/petitioner herein to explain that he was prevented by sufficient reasons from filing the complaint within the prescribed period of limitation by filing an application for condonation of delay along with an affidavit which, if filed within a period of 30 days from today, shall be considered and decided as expeditiously as possible, preferably within a further period of two months. 17. It is made clear that none of the parties will be entitled to adduce evidence in support or against the plea of condonation of delay and the same shall be decided exclusively on the basis of the contents of the application for condonation of delay and the supportive affidavit and the contents of complaint. 18. To enable the trial Court to do the needful, the order passed by the revisional Court dated 3.9.2014 in Criminal Revision No. 104/2014 is set aside. 19. With the aforesaid directions, the present petition stands disposed of. No cost.