Patna High Court
Pradip Ray vs State Of Bihar And Ors. on 2 April, 1997
Equivalent citations: 1998(2)ALD(CRI)97, 1998(1)BLJR226
Author: D.S. Dhaliwal
Bench: D.S. Dhaliwal
JUDGMENT D.S. Dhaliwal, J.
1. This petition under Section 482 of the Code of Criminal Procedure is directed against the order dated 19.6.1993 passed by the Chief Judicial Magistrate. Bhagalpur in Complaint Case No. 477/93 whereby he took cognizance against the petitioner for an offence under Section 138 of the Negotiable Instruments Act.
2. The case of the complainant (O.P. No. 2) is that the petitioner issued two cheques dated 8.1.1993 and 31.1.1993 both of which bounced on being presented in the Bank for payment. The complainant thereafter issued legal notice dated 7.4.1993 under registered post which the petitioner refused to accept vide endorsement dated 17.4.1993 (Annexure 4). The complainant (O.P. No. 2) thus filed a criminal complaint against the petitioner in the Court of Chief Judicial Magistrate on 19.6.1993 which led to passing of the impugned order.
3. I have heard the learned Counsel for the petitioner and the A.P.P. for the State. No one has put in appearance on behalf of the complainant (O.P. No. 2) although a notice was served upon him to show cause as to why this petition be not disposed of at the admission stage itself.
4. The contention of the learned Counsel for the petitioner is that the impugned order cannot be sustained as the learned Chief Judicial Magistrate could not have taken cognizance of the offence for the reason that the complaint was filed beyond the period of limitation provided by Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act'). Counsel maintained that according to Sub-clause (b) of Section 142 the Court could have taken cognizance of the offence only if the complaint was filed within one month from the date on which the cause of action arose under Clause (c) of the proviso to Section 138 and as the notice was served upto the petitioner on 17.4.1993 the complaint was filed much after the expiry of the period of limitation on 19.6.1993.
5. I find sufficient merit in that contention. Section 142 of the Act which relates to taking of cognizance of offences reads as follows:
142. Cognizance of offense--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1 974)-
(a) no Court shall take cognizance of 1 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.
6. A bare perusal of the aforesaid Section goes to show that as per Sub-clause (b) cognizance can be taken of the offence only if the complaint is made within one month from the date on which the cause at' action arises under Clause (c) of the proviso to Section 138 of the Act. It will he relevant at this stage of notice Sub-clause (c) to the proviso to Section 138 which reads as follows:
Provided that nothing contained in this Section shall apply unless-
(a) ....
(b) ....
(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.
Admittedly, the notice would he deemed to have been served validly upon the petitioner on 17.4.1993, on which date he refused to accept the same. As per Clause (c) after service of the notice the petitioner could have made payment of the amount of the cheque within 15 days and therefore, the cause of action under Sub-clause (c) of the proviso to Section 138 would arise to the complainant on the expiry of the aforesaid period of fifteen days from 17.4.1993, on 2.5.1993 and as such, the Chief Judicial Magistrate court have taken cognizance of the offence only if the complaint had been filed within a period of one month from 2.5.1993 in view of Sub-clause (b) of Section 142 of the Act. The complaint in this case was filed much after the expiry of that period on 19.6.1993 on which date the cognizance could not have been taken by the Chief Judicial Magistrate in view of Sub-clause (b) of Section 142 of the Act as the complaint was not filed within the stipulated period of one month.
7. In the result, the petition is allowed and the impugned order taking cognizance dated 19.6.1993 is quashed.