Delhi High Court
O.P. Chirania vs Dir. Of Lotteries And Deputy Secretary ... on 12 March, 1998
Equivalent citations: 1998IVAD(DELHI)197, 1998(46)DRJ537
ORDER
Anil Dev Singh, J:
1. This is a petition under section 482 of the Code of Criminal Procedure seeking to quash the criminal complaint No. 289/1 of 1996 pending before Shri V.K. Maheshwari, Metropolitan Magistrate, Patiala House, New Delhi.
2. Shri Gauri Shankar Mittal and the two petitioners, namely, Shri O.P. Chirania and Shri Binod Kumar Chirania, are the partners of M/s. Deep Mayank and Associates, respondent No.3 (for short 'the firm') having its branch offices in New Delhi and Patna and Head Office at Calcutta. The firm is doing a lottery business. In 1992 the State of Haryana was running seven weekly lotteries namely, Jai Durga, Mahadev, Hari Om, Jai Vishnu, Shri Ganesh, Maha Laxmi and Mahabali. On June 29, 1992, the Govt. of Haryana, represented by the Director of Haryana State Lotteries, Chandigarh, and M/s. Deep Mayank and Associates entered into an agreement whereby the former constituted the latter as its main stockists of lottery tickets of the above said weekly lotteries w.e.f. July 1, 1993. As per one of the terms and conditions of the agreement the firm was required to furnish a bank guarantee for a sum of Rs.3.71 crores and was also required to deposit a sum of Rs.3,78,000/- as payment on account of royalty, printing, publicity and administrative charges along with the amount of first prize in respect of 24 lakh lottery tickets of one draw per scheme. Before lifting the tickets the partnership firm issued fourteen cheques in favour of the Director of Haryana State Lotteries as per the following details :-
Sr. Cheque Date Amount.
No. No.
1. 284134 18.8.1992 Rs. 3,19,066/-
2. 284135 18.8.1992 Rs. 3,78,080/-
3. 284136 18.8.1992 Rs. 3,78,080/-
4. 284137 18.8.1992 Rs. 3,78,080/-
5. 284138 18.8.1992 Rs. 3,78,080/-
6. 284139 18.8.1992 Rs. 3,78,080/-
7. 284140 18.8.1992 Rs. 3,78,080/-
8. 284141 18.8.1992 Rs. 3,78,080/-
9. 284142 18.8.1992 Rs. 3,78,080/-
10. 284143 18.8.1992 Rs. 3,78,080/-
11. 284144 18.8.1992 Rs. 3,78,080/-
12. 284145 18.8.1992 Rs. 3,78,080/-
13. 284146 18.8.1992 Rs. 3,78,080/-
14. 284147 18.8.1992 Rs. 3,78,080/-
Total cheques bounced = Rs.52,34,106/-
3. These cheques were presented to the Reserve Bank of India, New Delhi, in three lots on August 19, 1992, August 24, 1992 and August 25, 1992 for securing the credit of the amounts mentioned therein into the accounts of the Haryana Government. However, the cheques were returned by the Dena Bank, New Delhi, with the remarks "funds insufficient and not arranged for". The five cheques presented on August 19, 1992 as per the following details were returned by separate memos of the bank dated August 20, 1992:-
Sr. Cheque Date Amount.
No. No.
1. 284134 18.8.1992 Rs. 3,19,066/-
2. 284135 18.8.1992 Rs. 3,78,080/-
3. 284136 18.8.1992 Rs. 3,78,080/-
4. 284137 18.8.1992 Rs. 3,78,080/-
5. 284138 18.8.1992 Rs. 3,78,080/-
4. By a notice dated August 25, 1992, the Sales Officer of the Haryana State Lotteries notified M/s. Deep Mayank and Associates the factum of Dishonor of the above said cheques. He also required the firm to deposit a sum of Rs.18,31,386/- with the Haryana State Lotteries. Besides, the firm was asked to ensure that the remaining cheques were honoured which had been deposited for clearance and collection on August 24, 1992 and August 25, 1992. Despite the above notice, the remaining cheques were Dishonored and were returned by the Dena Bank, New Delhi, with the remarks "funds insufficient and not arranged for" by its memos dated August 26, 1992 and August 29, 1992. Under memo dated August 26, 1992 the following four cheques for a total value of Rs.15,12,320/- were returned :-
Sr. Cheque Date Amount.
No. No.
1. 284139 18.8.1992 Rs. 3,78,080/-
2. 284140 18.8.1992 Rs. 3,78,080/-
3. 284141 18.8.1992 Rs. 3,78,080/-
4. 284142 18.8.1992 Rs. 3,78,080/-
Under memo dated August 29, 1992, the following five cheques of the
amount of Rs.18,90,400/- were also returned to the respondent.
Sr. Cheque Date Amount.
No. No.
1. 284143 18.8.1992 Rs. 3,78,080/-
2. 284144 18.8.1992 Rs. 3,78,080/-
3. 284145 18.8.1992 Rs. 3,78,080/-
4. 284146 18.8.1992 Rs. 3,78,080/-
5. 284147 18.8.1992 Rs. 3,78,080/-
5. On receipt of the aforesaid memos of the Dena Bank, the respondent by its notices dated August 28, 1992 and September 4, 1992 intimated the firm about the cheques being Dishonored for insufficiency of funds and on account of funds not arranged for. By the said notices the firm was asked to discharge their liability on account of the Dishonored cheques. In reply to the notice dated August 25, 1992, the firm by its letter dated August 26, 1992 sought the cooperation of the respondent and requested that the cheques be presented again after four or five days. In reply to the other notice of the respondent dated August 28, 1992, the firm by its letter dated August 31, 1992 regretted the bouncing of the cheques and attributed the same to the financial difficulties being faced by it. The firm, however, admitted its liability to the extent of Rs.55,25,000/- towards the State of Haryana and undertook to make an initial payment of a sum of Rs.3,78,080/- and further amounts by way of daily instalments of Rs.50,000/- each. On September 7, 1992 again a consolidated notice was given by the respondent to the firm inviting its attention to the bouncing of the above mentioned cheques and also requiring it to deposit an amount of Rs.52,34,106/- in the account of the Haryana Government. It is material to mention that the firm deposited a sum of Rs.2 lakh each on August 29, 1992 and August 31, 1992 and from September 2, 1992 to September 13, 1992 paid a sum of Rs.50,000/- each day aggregating to Rs.10 lakh. After September 13, 1992, however, no payment whatsoever was made by the firm to the respondent. Accordingly, an amount of Rs.42,34,106/- remains due and out-standing in respect of the cheques which were Dishonored. Since the payment schedule was not adhered to by the firm in spite of its undertaking, the respondent gave another notice dated September 22, 1992 notifying the latter that the Government of Haryana had decided to take action under clause 11 of the agreement as a consequence of which the tickets of all the weekly lottery schemes were to be sold at the risk and cost of the firm. The firm was also required to pay all outstanding amounts and also such other amounts falling due in due course. This notice also did not have the desired effect. Thereafter on November 4, 1992 the respondent sent a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') through registered post to the court of the Chief Metropolitan Magistrate, Delhi, which appears to have been received in the court on November 20, 1992. On May 6, 1995, the respondent filed an application before the Metropolitan Magistrate under section 473 of the Code of Crimi-
nal Procedure seeking extension of the period prescribed for filing the complaint under section 142 of the Act. In the application it was, inter alia, submitted that September 22, 1992, when the final notice was given to the petitioner by the respondent, should be considered as the date on which the cause of action accrued to the respondent and if that is done then there is no delay in filing the complaint. It was also submitted that in case the consolidated notice dated September 7, 1992 is considered as the statutory notice and September 7, 1992 is regarded as the the starting point for the purposes of limitation, the delay in filing the complaint would be ten days only which ought to be excused. The learned Metropolitan Magistrate by his order dated January 31, 1996 condoned the delay in filing the complaint and directed the issuance of the process against the firm as well as the partners thereof. The petitioners being aggrieved of the above said order have filed the instant petition under section 482 of the Code of Criminal Procedure.
6. I have heard the learned counsel for the parties. Learned counsel for the petitioners pointed out that the respondent had invoked the bank guarantee which action was challenged by the firm and the petitioners in a civil suit pending before a Subordinate Judge at Patna and the matter had reached the Apex Court which had directed the trial court to decide the additional issues framed by the High Court of Patna in appeal from the order of the Subordinate Court whereby the Subordinate Judge concluded and declared that the bank guarantee stood terminated and was not enforceable against the firm and the petitioners, and the Dena Bank was directed to release the margin money and the collateral securities in favour of the the firm and the petitioners. It is submitted that since the civil litigtion is pending between the parties in which the controversy regarding the question whether any amount is due from the petitioners to the respondent is involved, respondent's action in filing the complaint under section 138 of the Act is an abuse of the process of the court. This submission of the learned counsel for the petitioners must be rejected as the pendency of a civil suit cannot act as an impediment for filing a complaint under section 138 of the Act. Even if the respondent had filed a civil suit for recovery of the sums owed by the firm it could still invoke section 138 of the Act. Where an act gives rise to civil as well as criminal liability, the initiation of civil proceedings will not bar the criminal proceedings in respect of the same act which may be subject-matter of civil proceedings. The new provisions in Chapter XVII have been incorporated in the Act to impose punishment on the drawers of the cheques which are Dishonored due to insufficiency of funds or for the reason that it exceeds the arrangement made by the drawer to prevent misgivings and doubt in the efficacy of the banking system.
7. The main question to be determined is whether the complaint filed by the respondent under section 138 of the Act is within the period prescribed by section 142(b) of the Act. Before adverting to the above said question in detail it would be necessary to notice that the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (No.VI of 1988) inserted Chapter XVII, comprising of five sections, namely, sections 138 to 142 w.e.f. April 1, 1989. As is reflected from the preamble to the Amendment Act, the provisions were incorporated with a view to enhance the acceptability of the cheques in settlement of the liabilities by making the drawer liable for penalties in case of bouncing of a cheque due to insufficiency of funds in the account or for the reason that it exceeds the arrangement made by the drawer, with adequate safeguards to prevent harassment of honest drawers. Sections 138 and 142 of the Act, which are material to the controversy in question, read as follows :-
"Dishonor of cheques for insufficiency, etc., of funds in the account.
138. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawee of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
Cognizance of offences.
142. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 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;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
8. Thus, for the application of the above said sections it must be shown that -
1. The cheque was issued for the discharge of the whole or part of a debt or liability.
2. The cheque was presented within six months of the date on which it was drawn or within the period of its validity, whichever was earlier.
3. The cheque was Dishonored or returned unpaid for reason of insufficiency of funds in the account of the drawer or on account of the reason that it exceeded the arrangement made by the drawer.
4. The payee or the holder in due course of the cheque made a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within fifteen days of the receipt of the information by him from the bank regarding Dishonor of the cheque or the return of the same unpaid.
5. The drawer failed to make the payment of the said amount of money to the payee or the holder in due course of the cheque within fifteen days of the receipt of the said notice.
6. The payee or the holder in due course filed a written complaint in writing to the Metropolitan Magistrate or a Judicial Magistrate of the First Class.
7. The complaint was made within one month of the date on which the cause of action arose.
9. It is to be noticed that the mere issuance of a cheque is not an offence. The offence is committed and cause of action under section 138 read with section 142 arises when in spite of the demand notice by the payee issued within fifteen days of the receipt of the intimation by him from the bank regarding Dishonor of the cheque on account of the reason of insufficiency of funds in the account of the drawer, payment is not made by the drawer to the payee within the period stipulated in section 138(c), i.e, within a period of fifteen days of the receipt of the said notice by the drawer. From the expiry of these fifteen days complaint is to be made within one month. In other words, section 138 of the Act provides an opportunity to the drawer of a Dishonored cheque to pay within fifteen days of the receipt of a written notice sent by or on behalf of the drawe payee informing him that the cheques had been Dishonored. If payment is still not made by the drawer to the drawee within fifteen days of the receipt of the notice he commits an offence giving rise to a cause of action to the drawee to file a complaint before the court of a Metropolitan Magistrate within thirty days thereafter. But a drawee after giving notice of Dishonor of the cheque to the drawer may not file a complaint within one month of the expiry of fifteen days of the receipt of such notice by the drawer. The payee can again present the cheque to the bank a second time and in case of the same being returned unpaid, he can once again give a notice to the drawer for payment. In the event of the drawer not making the payment within the prescribed period of time the payee can file a complaint, or may not file a complaint and try again to recover the amount by presenting the cheque a third time, and so on and so forth provided this is done within the period of the validity of the cheque or within six months of the date on which the cheque is drawn, whichever is earlier. Chapter XVII of the Act does not preclude the creation of successive causes of action on the basis of one and the same cheque. After completion of one cause of action the payee or holder in due course can have a fresh cause of action in accord-
ance with law so long as the cheque remains unpaid and a complaint is filed within the period prescribed on the basis of the fresh cause of action so created. The Full Bench of Kerala High Court in M/s. S.K.D. Lakshmanan Fireworks Industries and another Vs. K.V. Sivarama Krishnan and another, 1995 Crl.L.J. 1384, while interpreting section 138 read with section 142 of the Act, held as follows :-
"While considering the above question it is relevant to note that in law a cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of the cheque or within the period of its validity whichever expires earlier. Such repeated presentation even after Dishonor at each time may be either voluntary or at the instance of the drawer. Even after such repeated Dishonor it is open to the payee or holder in due course to defer further action based on Dishonor. It may also be open to the payee or holder in due course to take further action to complete the cause of action as provided in clauses (b) & (c) of the proviso to S. 138 and not to file a complaint within the time specified under S. 142(b) of the Act for his own reasons. In that event, obviously, the payee or holder in due course will lose his right to prosecute the offender for the offence he has already committed by defaulting payment as demanded by the notice issued under clause (b) of the proviso to S. 138 of the Act. But, so long as the cheque remains unpaid the payee or holder in due course will certainly be entitled to present the cheque again. If the cheque is again Dishonored, no provision in Chapter XVII of the Act would expressly preclude the payee or holder in due course from issuing a notice of demand under clause (b) of the provisio to S. 138 of the Act and in case of default in making payment as demanded from filing a complaint on the basis of the fresh cause of action which accrues to him thereby for a second time. If such a complaint is filed and the complainant is able to establish all the ingredients of the offence and stisfies all other conditions required to be complied with for filing a complaint, it may not be possible to hold on the basis of any express provision in the Act that the complaint is not legally maintainable."
10. The same view has been taken by the Bombay and Madras High Courts (See Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar and another, 1993 Crl.L.J. 680; and S. Ravi Kumar Vs. Rajesh Kumar R. Jain, [1995] 83 Comp. Cases 750 respectively). However, the Punjab and Haryana High Court in Gulshan Rai Vs. Darshan Lal, [1995] 84 Comp. Cases 445, and Rita Khanna Vs. R.S. Traders and another, [1996] 85 Comp. Cases 446, has taken a contrary view, the effect of which is that no prosecution can be launched against the accused on the basis of a cheque presented after the same was Dishonored in the first instance, as the drawee could not have a second cause of action on the same cheque. With respect I am unable to subscribe to the above view of the Punjab High Court. Section 138 read with section 142 of the Act does not bar the creation of repeated causes of action on the same cheque.
11. Mr. Tulsi, learned senior counsel for the respondent pointed out that though the respondent had not re-presented the cheques to the bank after the first Dishonor it nonetheless issued fresh consolidated demand notice on September 7, 1992 for Dishonor of all the cheques followed by another notice dated September 22, 1992. The learned senior counsel submitted that in case September 7, 1992 is considered as the statutory demand notice as contemplated by clause (b) of proviso to section 138 of the Act, then in that event there is a delay of ten days in filing the complaint from the date of despatch of the complaint by post, and in case September 22, 1992 is considered as a valid notice of the respondent, then in that event there is no delay in filing the complaint. In connection with the submissions of Mr. Tulsi, it needs to be noted that initially the notices were given on August 25, 1992, August 28, 1992 and September 4, 1992 for the cheques which were returned through the memos of the bank dated August 20, 1992, August 26, 1992 and August 29, 1992. These notices obviously were given much before the expiry of fifteen days of the receipt of the information by the respondent from the bank regarding Dishonor of the respective cheques.
If a Dishonored cheque can be presented repeatedly and fresh notice of its Dishonor can be given to the drawee to create fresh cause of action in the manner stated above, it seems to me that the respondent could have given fresh demand notice(s) under clause (b) of the proviso to section 138 of the Act before the expiry of the above said period of fifteen days. The following chart would show the time upto which the respondent could give notice(s) to the petitioner in respect of each lot of Dishonored cheques :-
Lot of Date on which Time upto which
Dishonored Dishonored cheques demand notice
cheques were returned by could be given
the bank. u/s 138(b) of
the Act.
First Lot 20.8.1992 10.9.1992
Second Lot 26.8.1992 13.9.1992
Third Lot 29.8.1992 17.9.1992
12. From the above chart it is clear that whereas the notice given by the respondent to the petitioners on September 22, 1992, will be beyond the prescribed period, consolidated demand notice dated September 7, 1992, is within time. Therefore, the notice dated September 22, 1992, has to go out of reckoning for calculating the period within which the complaint could be filed. But consolidated demand notice dated September 7, 1992, fulfills the requirements of clause (b) of proviso to section 138 of the Act and has to be considered for determining the date on which the cause of action accured to the respondent for filing the complaint. It is undisputed that the petitioners did not make the payment within fifteen days of the receipt of the notice. On the expiry of the fifteen days from the receipt of this notice the respondent had to file a complaint within one month therefrom as the period of one month prescribed for filing complaint is to be reckoned in accordance with provisions of clause (b) of section 142. But the petitioners have not mentioned anywhere the date on which they had received the demand notice dated September 7, 1992. According to the mandate of section 142(b) of the Act the complaint is to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138, i.e., the complaint is to be made within one month of the expiry of the period of fifteen days from the receipt of the demand notice by the drawer. It seems to me that both the petitioners as well as the respondent were labouring under a misapprehension of law that that period of one month is to be calculated from the date of issue of the demand notice by the payee of the cheque. The learned Metropolitan Magistrate also committed the same mistake. Since the date of the receipt of the demand notice by the petitioners is yet to come on record the Metropolitan Magistrate ought not to have decided the application for condensation of delay on the assumption that the complaint was filed beyond the time prescribed by section 142(b) of the Act. It would be a matter of evidence as to when the demand notice was received by the drawer. The Metropolitan Magistrate should have asked the petitioners to specify the date on which they received the notice of demand dated September 7, 1992. Since the demand notice dated September 7, 1992 was sent by registered A.D. post, he could have even asked the respondent to file the A.D. card or produce the certificate from the post office as to when the registered letter was delivered to the petitioners. The question whether or not the complaint suffered from delay was to be determined on the basis of evidence of the fact as to when the demand notice dated September 7, 1992 issued by the respondent in respect of the Dishonored cheques was received by the petitioners as the complaint was to be filed by the respondent within one month of the expiry of fifteen days from the receipt of the demand notice. It may be empha-
sised, even at the cost of repetition, that the period of one month laid down in section 142(b) of the Act for filing the complaint is required to be calculated with reference to the cause of action which arises under clause (c) of the proviso to section 138 of the Act. Therefore, it becomes imperative to determine the date when the demand notice was received by the petitioners. In the circumstances, the consideration of the application under section 473 of the Code of Criminal Procedure by the trial court was premature. Normally, I would have remanded the matter to the learned Metropolitan Magistrate with the direction to determine the date when the petitioners received the statutory demand notice dated September 7, 1992 but that would result in delay. Therefore, in the circumstances I would direct the petitioners to file an affidavit specifying the date when the demand notice dated September 7, 1992 was served on them. At the same time I would also direct the respondent to file a certificate from the postal authori-
ties as to when the registered cover containing the demand notice was served on the petitioners.
13. The question whether section 473 of the Code of Criminal Procedure or section 5 of the Limitation Act can be invoked, may or may not arise in the instant case depending upon the determination of the date as to when the notice of demand was served on the petitioners, but if it arises my views are as follows :
14. Whether the Metropolitan Magistrate was right in condoning the delay under section 473 of the Code of Criminal Procedure depends upon the interpretation of section 142 of the Act. Section 142 of the Act opens with a non obstante clause. It appears to me that the words "notwithstanding anything contained in the Code of Criminal Procedure" give overriding effect to the said provision over the provisions of the Criminal Procedure Code. Section 142(b) of the Act, fixes the period within which the payee or the holder in due course can file a complaint and such period cannot be extended under section 473 of the Code of Criminal Procedure as section 142 of the Act prevails over section 473 of the Code of Criminal Procedure which permits the court to take cognizance of an offence even after the expiry of the period of limitation if it is satisfied on facts and in the circumstances of the case that delay has been duly explained or that it is necessary so to do in the interest of justice. The same view has been taken by the Kerala High Court in Kunhi Mohammed Vs. M.K. Khadiya and another, 1996 (2) Vol. 29 All India Banking Law Judgments 44. Similar view was also expressed by the Orissa High Court in Janardhan Mohapatra Vs. Saroj Kumar Choudhury, 1993 Crl. L.J. 1751. But my learned brother Vijender Jain, J. in Ram Richhpal Gupta Vs. M/s. DCM Shriram Consolidated Ltd. 59 (1995) Delhi Law Times 284, has taken a view that the period prescribed for filing complaint under section 142 of the Negotiable Instruments Act can be extended under section 473 of the Code of Criminal Procedure. With respect I do not agree with this view for the reasons already given by me above. My view, however, cannot prevail over the view taken by brother Vijender Jain, J. in Ram Richhpal Gupta Vs. M/s. DCM Shriram Consolidated Ltd (supra), and the controversy obviously would have to be resolved by a larger bench in this case or in any other appropriate case. In this case it will be resolved by the larger Bench only if the evidence produced by the parties shows that the complaint was filed after one month from the expiry of fifteen days of the receipt of notice of demand dated September 7, 1992 by the petitioners.
15. However, the question still remains whether section 5 of the Limitation Act, 1963 would be applicable to a complaint filed beyond the period prescribed under section 142(b) of the Act. In this context sections 29(2) and 3 of the Limitation Act are relevant. They read as follows :-
29. Savings. - (1) .......
(2) Where any special or local law prescribed for any suit, appeal or application a period of limition different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitatiion prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
xx xx xx xx "
"3. Bar of limitation. - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defense."
xx xx xx "
16. A combined reading of these sections leave no manner of doubt that the Limitation Act extends the application of the provisions of sections 4 to 24 to special enactments unless they are specifically excluded by the latter. This obviously includes section 5 of the Limitation Act which deals with extension of the prescribed period of limitation in case of appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure. Section 5 of the Limitation Act, in so far as it is relevant to the issue, is extracted below :-
5. Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation - ........ "
17. By virtue of section 5 of the Limitation Act, any appeal or any application can be admitted after the prescribed period if the court is satisfied that there was sufficient cause for not preferring the appeal or making the application within such period. It is noteworthy that Section 5 does not talk of a complaint. It only talks of appeal and application. complaint by no stretch of imagination can be included within the meaning of the words "appeal" and "application". In other words, a complaint does not fall in the category of an appeal or an application as mentioned in section 5 of the Limitation Act. The proceedings contemplated by section 138 read with section 142 of the Negotiable Instruments Act are original proceedings and the period prescribed therefore must be adhered to. It is significant that section 5 of the Limitation Act does not apply to suits which are again original proceedings. In case the word "application" is construed widely so as to include the original proceedings, then in that event a suit could also be filed beyond the period of limitation with an application for condensation of delay. That does not appear to be the intention of section 5. The word "application" has been defined in section 2(b) of the Limitation Act which reads as follows :-
"application' includes a petiton;"
Just because in the complaint, which as per section 2(d) of the Code of Criminal Procedure means any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, committed an offence, a prayer is made to the Magistrate to summon the accused and convict him, does not bring the complaint at par with a petition or an application in which case also the court is requested to take certain action. It is also significant to note that in the plaint too the court is requested to take a particular action or to pass a decree or certain orders but that can not be treated as an 'application' or a 'petition'. In Kunhi Mohammed v. M.K. Khadiya and another (supra) the Kerala High Court took the same view and held that the period fixed for filing a complaint under section 142 of the Negotiable Instruments Act can neither be extended under section 473 Cr.P.C. nor delay can be condoned under section 5 of the Limitation Act. The court while holding so observed as follows :-
"9. The above provisions are not exhaustive. Generally every motion before a criminal court has to be in the form of a complaint, application or petition. It seems to be clear that the words application, complaint and petition are neither inter-
changeable nor have the same meaning or import. A complaint under Section 142 of the Negotiable Instruments Act is not the same as an application. It is neither a petition nor the person making it a petitioner. The period prescribed for filing a complaint under the act is a period of limitation within which it has to be filed and can neither be extended under section 473, Cr.P.C., nor the delay condoned under section 5 of the Limitation Act. Even otherwise, in regard to original proceedings by way of a complaint the period prescribed therefore has to be adhered to. A complaint made beyond one month of the date on which the cause of action had arisen under clause (e) of the proviso to Section 138 will, in my view, be barred and the Magistrate will get no jurisdiction to take cognizance of the offence alleged in the complaint...."
18. In Janardhan Mohapatra v. Saroj Kumar Choudhury (supra), the Orissa high Court, however, held that a complaint where a prayer has been made either to take cognizance of an offence, or to convict an accused, is a petition which in term comes within the meaning of the word 'application' as used in section 29(2) of the Limitation Act and, therefore, section 5 thereof applies. With respect I cannot subscribe to this view for the reasons stated above.
19. Having regard to the above discussion, the petitioners and the respondents are directed to file proof of the date on which the demand notice dated September 7, 1992 was served on the petitioners in the manner indicated above and also in any other manner as the parties may deem fit.
20. List the matter on March 19, 1998. The question as to whether the case has to be referred to a larger Bench with regard to the application of section 473 of the Code of Criminal Procedure and section 5 of the Limitation Act will have to be considered subsequently depending upon the answer to the question, namely, as to when the petitioners were served with the notice of demand dated September 7, 1992.
21. The matter will not be treated as part heard and would be listed before the Bench dealing with criminal matters subject to orders of Hon'ble the Acting Chief Justice.