Orissa High Court
Janardhan Mohapatra vs Saroj Kumar Choudhury on 8 February, 1993
Equivalent citations: [1994]79COMPCAS821(ORISSA), 1993CRILJ1751
JUDGMENT S. C. Mohapatra, J.
1. The accused is the petitioner in this application invoking the power under Section 482 of the Criminal Procedure Code to quash cognizance taken against him.
2. The accused issued a cheque in favour of the complainant on August 24, 1991, which the complainant deposited for collection in his account. The bank to which it was sent for collection did not honour the cheque on the ground that there is no sufficient fund available in the account of the accused. This fact was intimated to the complainant on August 28, 1991. The complainant thereafter called upon the accused to pay the amount which was received by the accused on September 20, 1991. No payment having been made by the accused, a complaint was filed in February, 1991, alleging that the accused has committed an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act"). The trial court having taken cognizance of the offence and having directed issue of process against the accused, this application has been filed to quash the cognizance.
3. Mr. P. Palit, learned counsel for the petitioner, referring to Sections 138 and 142 of the Act submitted that the period of limitation having been prescribed in the Act itself for filing of complaint in writing, taking cognizance on a complaint filed beyond that period is barred.
4. Sections 138 and 142 of the Act read as follows :
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--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 drawer 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 purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability."
" 142. Cognizance of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 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 38."
5. The language of Section 142 of the Act has limited the scope of taking cognizance. Such power is restricted to--
(i) a complaint in writing by the payee or holder in due course;
(ii) such complaint is made within one month of the date on which cause of action" arose under Section 138, proviso (c), of the Act ; and
(iii) court taking cognizance is not inferior to the Metropolitan Magistrate dr the Judicial Magistrate 1st Class.
6. There is no dispute in this case that restrictions as described in (i) and (iii) are satisfied. Therefore, it is only to be examined whether the same has been made within one month of the cause of action as has been provided under Section 138, proviso (c), of the Act and in case the same has not been so filed whether the court can take cognizance.
7. Under Section 138 of the Act opportunity is given to the person issuing the cheque which was dishonoured to pay within fifteen days of the receipt of notice in writing from the payee that the same has been dishonoured. If payment is not made within fifteen days thereafter, an offence is committed. The cause of action arises only on the commission of the offence. From the expiry of fifteen days, therefore, the complaint is to be made within one month. In this case, the accused received a notice on September 30, 1991. If he would have paid the money to the complainant on or before October 15, 1991, he would not have committed any offence under Section 138 of the Act. Therefore, the cause of action arose on October 16, 1991, since under the statute he is to discharge his liability within fifteen days thereafter. Hence on account of non-payment, complaint is to be made within one month, i.e., on or before November 16, 1991. In view of the clear language of Section 142(b), the court to which the complaint was made could not have taken cognizance since the complaint was made in February, 1992. The trial court not having taken into consideration the restriction under Section 142(b) of the Act the order taking cognizance is vulnerable and is liable to be set aside.
8. Setting aside the order taking cognizance would invalidate the direction to the issue of process, and the same is also to be vacated. However, the complaint cannot be ipso facto dismissed on that ground unless the bar under Section 142(b) is absolute. Whether it is an absolute bar is to be considered.
9. While Mr. P. Palit, learned counsel for the petitioner, submitted that taking cognizance is absolutely barred under Section 142(b) of the Act since the provisions relating to taking cognizance in Chapter XXXVI of the Criminal Procedure Code, containing Sections 468 to 473 is excluded by the term "notwithstanding anything contained in the Code of Criminal Procedure", Mr. P.V. Ramdas, learned counsel for the complainant, submitted that Section 142 of the Act is to be interpreted in furtherance of the object of making dishonour of a cheque an offence and, therefore, the general provision in Section 5 of the Limitation Act, 1963, would be applicable and delay can be condoned.
10. Dishonour of a cheque issued and non-payment of the amount mentioned in the cheque by itself was not an offence earlier to the insertion of Section 138 of the Act though it might attract civil liability. Parliament inserted Chapter XVII comprising Sections 138 to 142 in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, which came into force with effect from April 1, 1989. This Chapter has been inserted with a view to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangement made by the drawer with adequate safeguards to prevent harassment of honest drawers. It may be mentioned that earlier Chapter XVII of the Act stood repealed with effect from February 14, 1956, by the Notaries Act, 1952.
11. Failure to discharge a liability by a person is a wrong committed. All wrongs to others are not crimes attracting penalty under law. Only where the wrong affects the peace of the society and causes imbalances to the physical and mental safety of the members thereof, law is made declaring it to be an offence which attracts penalty. Legislative bodies make laws, courts apply them and the executive Government works out the directions of the court. Our Constitution aims at this harmonious working. Conflict between two or more wings has the effect of affecting the Republic itself. Therefore, though Parliament makes the law, the court is to interpret it and determine the object to respect the wish of Parliament for applying the law made by it.
12. Whether an offence has been committed is to be decided at the trial of a person accused of an offence. Procedure for trial has been laid down in the Code of Criminal Procedure. Parliament has provided how the trial is to be made. When the facts constituting an offence are brought to the notice of the court which becomes satisfied that the facts and circumstances indicated constitute an offence, it takes cognizance whereafter it issues process to the accused for being tried. In respect of some offences, investigating agencies have been authorised to arrest the person who is suspected of having committed the offence. To protect them, it has been provided that on arrest, they are to be produced before the Magistrate if the investigating agency has not released them earlier after arrest. The court has been authorised to release those persons on bail. Where the investigation does not take final shape within the time fixed, a right is conferred on such persons to move for bail and the court has no discretion to refuse the same. In respect of some offences, pre-conditions like sanction of authorities are envisaged and the court's power to take cognizance is restricted. In some cases, persons affected are only competent to initiate prosecution of an accused. These pre-conditions are to be satisfied for taking cognizance. Taking care of the fundamental rights to freedom of liberty of a person, adequate provisions have been made so that a person, accused of an offence is tried. Not to be tried for an offence is not a fundamental right. Speedy trial is such a right. When an offence is a wrong to the society, the person against whom the allegation is made has to clear himself by acquittal.
13. After Chapter XXXVI, Criminal Procedure Code, came into force, the power of the court to take cognizance beyond the period fixed was restricted. For this, offences were classified depending upon the maximum sentence which can be imposed on an accused. In respect of some offences there is no such restriction. Even in respect of offences where the power of taking cognizance is restricted by fixing a period of limitation, the court has been authorised to extend time. Under the Code of Criminal Procedure, there is no period for filing a complaint or otherwise initiate to a pro ceeding for prosecuting an accused. Restriction has been imposed on taking cognizance. In given cases, the court has been vested with power to extend the period. Thus, in cases where the complaint had been filed on the date the offence was committed but cognizance was not taken within the period fixed, the court cannot take cognizance unless it extends the time in exercise of power under Section 473 of the Criminal Procedure Code. Apart from the fact that these provisions in the Criminal Procedure Code are not applicable to an offence under Section 138 of the Act, the language of Section 142 of the Act does not fix the period within which cognizance is to be taken. It has only restricted the power of taking cognizance to complaints filed within one month of the cause of action. Thus, a period has been fixed to make a complaint by the payee and for taking cogni zance.
14. In case it is held that the complaint is an application made to the court, delay in making the complaint can be condoned by the court in exercise of power under Section 5 of the Limitation Act, 1963, in view of Section 29(2) thereof. It reads as follows :
"29. Savings.- . . .
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation 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 limitation 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."
15. Prior to the Limitation Act, 1963, Section 5 of the earlier Limitation Act, 1908, was not applicable. This question was under consideration of the Supreme Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260, in the context of whether an application for special leave to appeal against an order of acquittal filed beyond the time fixed, can be entertained. It was held that Section 5 of the Limitation Act, 1908, not having been specifically made applicable, the court has no jurisdiction to entertain the same. The said question came up for consideration again in the decision in Mangu Ram v. Municipal Corporation of Delhi, AIR 1976 SC 105, where the decision in Kaushalya Rani v. Gopal Sinah, AIR 1964 SC 260, was distinguished in view of the change of law and it was held that sections of the Limitation Act, 1963, is applicable and the court has jurisdiction to entertain an application filed beyond the period of limitation prescribed by condoning delay since the same was not specifically excluded.
16. The question, therefore, is whether a complaint is an application. The word "complaint" has been defined in Section 2(d) of the Criminal Procedure Code. It reads as follows :
"2. Definitions.--In this Code, unless the context otherwise requires :--
(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
17. The word "application" has been defined in Section 2(b) of the Limitation Act, 1963, to include a petition. An inclusive definition is wide in its nature. The dictionary meaning of the word "application", amongst others, is "the act of making a request or soliciting" (see The New Webster Encyclopedia Dictionary of the English Language, 1980 Edition). In the said dictionary, the word "petition" means, amongst others, "prayer, a formal written request, a document containing such a request, usually signed by persons supporting the request".
18. Mr. P. Palit relied upon a decision in [1971] MPLJ 1046 (complete text' not available) where a complaint was filed by the public prosecutor for an offence of defamation committed against the public servant beyond the period of limitation prescribed under Section 198B(4) of the Criminal Procedure Code. It was held that Section 5 of the Limitation Act, 1963, cannot be invoked since a "complaint" does not fall under the category of a suit, an appeal or an application mentioned in Section 29(2) of the Limitation Act. Although the principle laid down in this decision is directly applicable, I am not persuaded by the same. The complaint is nothing else than a prayer to the court requesting or soliciting conviction of an accused in respect of the offence described therein. In Surendranath Behere v. State [1971] 1 CWR 292, it has been observed though in a different context :
"... as the complaint filed before the Magistrate sets out the allegations which prima facie constitute an offence under the law stated therein, also there is a prayer therein to take cognizance of the said offence, and to compel the accused by legal process to stand his trial under the law. Thus all the essentials of a 'complaint' are present in the complaint petition filed in this case . . ."
19. I am of the view that a complaint where a prayer has been made either to take cognizance or to convict an accused, is a petition which term comes within the definition of "application" as used in Section 29(2) of the Limitation Act, and, therefore, Section 5 of the Limitation Act applies. Delay in making a complaint beyond the period of limitation prescribed in Section 142(b) of the Act can be condoned and cognizance can be taken since. This interpretation given by me shall advance the cause of justice by satisfying the wish of Parliament that offenders do not escape trial on technical grounds. Where the interpretation serves society more than the prejudice, if any, to an individual, the requirement of the society should prevail.
20. Before me, there is no dispute that the complaint filed is beyond the period of limitation prescribed under Section 142 of the Act. The trial court has not taken into consideration whether there was sufficient cause for condoning the delay under Section 5 of the Limitation Act. Accordingly, cognizance taken cannot be supported, which is vacated. The trial court is directed to consider whether there is sufficient cause for the delay and if it is satisfied that there is sufficient cause, it shall condone the delay in filing the complaint within the period of limitation prescribed under Section 142 of the Act and take cognizance since it is not disputed before me that if the complaint had been made within the period of limitation, the court could have taken cognizance. However, I may make it clear that taking of cognizance by itself would not lead to an inference that the accused is guilty. Cognizance only enables a court to issue process to the accused for his trial.
21. Subject to the aforesaid observations and directions, this application is allowed to the extent indicated above.