Tripura High Court
Sri Tridip Chanda vs Md. Saha Alam Miah on 20 February, 2020
Equivalent citations: AIRONLINE 2020 TRI 49
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 8
HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. No.06/2020
Sri Tridip Chanda
Son of Sri Pradip Chanda,
Resident of Bhati Abhoynagar,
Near Albert Club, Agartala,
P.S. - West Agartala,
District - West Tripura.
.....Petitioner(s)
Versus
1. Md. Saha Alam Miah
Son of Mahabhat Miah,
Resident of South Ramnagar,
P.S. - West Agartala,
District - West Tripura.
2. State of Tripura.
.....Respondent(s)
For Petitioner(s) : Mr. Sankar Lodh, Advocate.
Mr. K. Saha, Advocate.
For Respondent No.1 : Mr. P.K. Biswas, Sr. Advocate.
Mr. P. Majumder, Advocate.
Mr. Debajit Biswas, Advocate.
For Respondent No.2 : Mr. Ratan Datta, P.P.
Date of hearing and judgment : 20.02.2020.
Whether fit for reporting : Yes.
JUDGMENT & ORDER(ORAL)
This petition is filed by the original accused. He has challenged an order dated 25.01.2018 passed by the learned Additional Chief Judicial Magistrate, West Tripura by which cognizance of a complaint filed by the respondent No.1 herein against the petitioner for offence under Section 138 of the Negotiable Instrument Act ('N.I. Act' for short) was taken. Page 2 of 8
2. Brief facts are as under:
According to the respondent complainant, the petitioner had borrowed a sum of Rs.20,00,000/- on 09.05.2016 promising that the said sum would be refunded as and when required. When the complainant requested for the refund of the loan amount the accused issued a cheque dated 17.07.2020 for a sum of Rs.20,00,000/- drawn on Syndicate Bank, Sepahijala from his account. This cheque was presented by the complainant to his Bank for realization. The cheque was returned with endorsement dated 19.07.2017 that the cheque could not be honoured due to insufficient funds. The complainant thereupon issued notice under Section 138 of the N.I. Act on 02.08.2017 asking the petitioner to pay up the same within 15 days failing which the complainant would approach the court of law. The demand notice was served on the petitioner on 03.08.2017. According to the complainant thereafter "That, on receipt of the demand notice issued by the complainant as mentioned above, the accused approached the complainant and requested to get time up to 21-09-2017 to make the payment and accordingly, the complainant did not file the case before this Ld. Court within 30 days from the date of receipt of the notice dated 2/8/2017, but thereafter, the accused on 21-09-2017 neither made the payment nor met the complainant and for this reason the complainant could not be filed within one month from the date of receipt of the notice as mentioned above." Since the accused did not pay of the amount, the complaint under Section 138 of the N.I. Act was filed before the concerned Magistrate on Page 3 of 8 25.09.2017 on which, by the impugned order the Magistrate took cognizance.
3. Appearing for the petitioner original accused, learned counsel Mr. Sankar Lodh submitted that the complaint was filed beyond the period of limitation prescribed under Section 142 of the N.I. Act. No order condoning the delay was passed by the Magistrate. No such order could have been passed without hearing the accused. In support of these contentions he relied on certain decisions reference to which would be made at a later stage.
4. On the other hand, learned counsel for the complainant submitted that Magistrate has the power to condone the delay. There is no requirement that a separate application seeking condonation should be filed. The delay is explained in the complaint itself. Petition may therefore be dismissed.
5. As is well-known Section 138 of the N.I. Act lays down that timelines for issuing notice of repayment and if no such repayment is made for filing complaint before the Magistrate when a cheque upon its presentation has been dishonoured. Section 142 of the N.I. Act pertains to cognizance of offences. Sub-Section (1) of Section 142 inter alia provides that notwithstanding anything contained in the Code of Criminal Procedure, (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or, the holder of the cheque in due course and (b) such complaint is made within one month of the date on which the cause of action Page 4 of 8 arises under Clause (c) of the proviso to Section 138. Under Clause (b) of sub-Section (1) of Section 142 the legislature has inserted a proviso which provides 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.
6. What emerges from the said provision is that the Magistrate would not take cognizance of a complaint which is not made within one month of the date on which the cause of action in terms of Clause (c) of the proviso to Section 138 has arisen but the Magistrate has the discretion to take cognizance even beyond such period, provided the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
7. The provisions of Section 142 of the N.I. Act noted above are akin to Section 473 of the Criminal Procedure Code which while providing for limitation for taking cognizance of certain offences, saves the power of the Court upon being satisfied of the sufficient cause for taking cognizance beyond the period of limitation.
8. In case of Surinder Mohan Vikal vs. Ascharaj Lal Chopra, reported in AIR 1978 SC 986 in the context of the limitation provisions contained in the Cr.P.C., it was observed as under:
"8. It would thus appear that the appellant was entitled to the benefit of sub-section (1) of Section 468 which prohibits every Court from taking cognizance Page 5 of 8 of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under Section 468 of the Cr.P.C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case."
9. In case of Srinivas Gopal vs. Union Territory of Arunachal Pradesh, reported in AIR 1988 SC 1729 noticing that the Magistrate had taken cognizance of an offence without considering the question of limitation, the above observations in case of Surinder Mohan Vikal (supra) were noted with approval.
10. In case of State of Himachal Pradesh vs. Tara Dutt and Ors., AIR 2000 SC 297, it was observed as under:
"7. Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation Page 6 of 8 of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, where-ever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence. ..."
11. In case of State of Maharashtra vs. Sharadchandra Vinayak Dongre and others, reported in (1995) 1 SCC 42, the accused had filed a petition before the High Court which under Section 482 Cr.P.C. challenging the cognizance taken by the Magistrate condoning the delay without hearing the accused. The High Court held that the Chief Judicial Magistrate could not have condoned the delay in launching the prosecution without notice to the respondents and permitting to have their say. This judgment of the High Court was challenged before the Supreme Court. The Supreme Court held that the High Court was justified in holding that delay in launching the prosecution could not have been condoned without notice to respondents and behind the back and without recording any reasons for condonation of the delay. Page 7 of 8
12. In case of P.K. Choudhury vs. Commander, 48 BRTF (GREF) reported in (2008) 13 SCC 229, the above observations of the Supreme Court in case of State of Maharashtra vs. Sharadchandra Vinayak Dongre (supra) were noted with approval. It was observed as under:
"10. The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of Maharashtra Vs. Sharadchandra Vinayak Dongre (1995) 1 SCC 42 this Court held:
"5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a „supplementary charge- sheet‟ on the basis of an „incomplete charge-sheet‟ and quashed the order of the CJM dated 21-11-1986 on this ground also. This view Page 8 of 8 of the High Court, in the facts and circumstances of the case is patently erroneous."
10. In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant was entitled to get an opportunity of being heard before the delay could be condoned."
13. Under the circumstances, the impugned order dated 25.01.2018 passed by the learned Additional Chief Judicial Magistrate, West Tripura is quashed. However, proceeding be placed back before the Magistrate for consideration of the reasons stated by the complainant for filing the complaint after the period of limitation. The learned Magistrate shall decide whether the complainant had made out sufficient cause for not making the complaint within such period. This exercise shall be undertaken after hearing the accused as well.
14. With these directions petition is disposed of. Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ sima