Allahabad High Court
Shree Narain Mishra @ Damo Dabu And ... vs Prem Lata Modi on 7 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 13518 of 2005 Applicant :- Shree Narain Mishra @ Damo Dabu And Another Opposite Party :- Prem Lata Modi Counsel for Applicant :- Somesh Khare, Afsan Shaufat, Komal Khare Counsel for Opposite Party :- G.S. Chauhan, Govt.Advocate, Rajesh Srivastava Hon'ble Sudhir Agarwal,J.
1. Heard Sri Somesh Khare, Advocate, for applicants and Sri G.S. Chauhan, Advocate, for respondent.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash proceedings in Complaint Case No. 5904 of 2002 (Munna Lal Prem Lata Modi (HUF) Vs. Lalloo Prasad Shree Narain and others), under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act, 1881") pending in the Court of Additional Chief Metropolitan Magistrate-II, Kanpur Nagar.
3. Applicants have been summoned by Additional Chief Judicial Magistrate-II, Kanpur Nagar by order dated 17.01.2004 for trial of offences under Section 138 of Act, 1881 and the application/protest petition dated 01.04.2002 seeking recall of summoning order dated 17.01.2004 has been rejected by order dated 24.07.2004.
4. Learned counsel for applicants contended that as per the complaint, initially cheque no. 437389 dated 07.05.1999 was issued for a sum of Rs 75,000/- which could not be submitted for collection on the request of applicant for deferring such submission of cheque for collection and in the meantime validity period expired. Then applicant re-validated cheque by correcting date of issue of cheque as 01.08.2002. Thereafter it was deposited in the Bank for collection in August, 2002 but returned by Bank on the ground of insufficient balance. A notice was given to applicants on 17.08.2002 and thereafter complaint was filed on 10.09.2002. It was registered by Magistrate concerned as Criminal Case No. 5904 of 2002.
5. Learned counsel for applicant submitted that offence as per aforesaid assertion of complainant, was committed in August, 2002 but summoning order was passed on 17.01.2004 and is barred by limitation prescribed under 468 Cr.P.C., therefore, proceedings are barred by limitation. He further contended that no exact date, when notice was served upon applicants, has been mentioned, therefore, also complaint is not maintainable.
6. However, I find no force in either of the submissions.
7. Firstly, from the complaint it is clear that the re-validated date of cheque was 01.08.2002. It was submitted on the same date when it was dishonoured. Notice was thereafter given on 17.08.2002 and within one month thereof complaint was filed on 10.09.2002. Counsel for applicant could not explain as to in what manner complaint is barred by limitation.
8. Secondly, it is well settled that limitation provided under Section 468 Cr.P.C. is not applicable to the proceedings under Section 138 NI Act, 1881. Act, 1881 is a special Statute. Chapter XVII was inserted by Act No. 66 of 1983 with effect from 01.04.1989 defining dishonor of cheque as an offence. The object is to inculcate faith in the efficacy of banking operations and credibility in transacting business and also taking into account provisions of Section 147 compounding of offence should not normally be denied. It has been so held by Supreme Court in Vinay Devanna Nayak Vs. Ryot Seva Sahakari Bank Ltd. (2008) 2 SCC 305.
9. Proceedings under Section 138 of Act, 1881 are neither recovery proceedings nor civil in nature. Offence under Section 138 of Act, 1881 is both technical and also involves no moral turpitude. Object is to punish unscrupulous drawers of cheque, who, though purported to discharge their liability, have no real intention to pay. Language of Section 142 of Act, 1881 does not fix the period within which cognizance is to be taken. It only reiterates power of taking cognizance to the complaint filed within one month of arising of cause of action. Since the special provisions have been made in Act, 1881, it is the period of limitation prescribed therein which will apply and the limitation prescribed under general provisions of Cr.P.C. will not be applicable. Therefore, reliance placed on Section 468 Cr.P.C. is wholly misconceived.
10. Moreover, when the complaint has been filed validly, it is not the date of order of summoning which would be relevant but it is the date on which complaint was filed which will be considered for the purpose of limitation under Section 468 Cr.P.C.
11. For the purpose of computation of period of limitation, Section 469 Cr.P.C. provides as under:-
"469. Commencement of the period of limitation.
(1) The period of limitation, in relation to an offender, shall commence,-
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
(2) In computing the said period, the day from which such period is to be computed shall be excluded."
12. Learned counsel for applicants submitted that under Section 468 Cr.P.C., period of limitation has been prescribed and reading Section 468 with 469 Cr.P.C., starting period of limitation would be date of incident and ultimate period will be the date when Magistrate takes cognizance. If on the date of cognizance, period of limitation has expired, he cannot take cognizance.
13. I find no substance in the submission. It is true that limitation commences from the date of incident or sometimes, period of limitation commences from the date of knowledge etc. as stipulated under Section 469 Cr.P.C. but where complaint has been filed within period of limitation and matter has remained pending for investigation or for the order of Magistrate, the Court, while examining whether complaint was filed within limitation or not, cannot say that cognizance, if taken subsequently, will be barred by limitation since such cognizance will relate back to the filing of date of complaint.
14. A similar question came to be considered in Bharat Damodar Kale and another vs. State of Andhra Pradesh AIR 2003 SC 4560. It was argued that if complaint is filed within period of limitation but cognizance is not taken within such period, it would be barred by limitation. I find that Court held that if complaint was filed within period of limitation, cognizance even if taken after expiry of period of limitation, it would not be barred since for the purpose of Section 469 Cr.P.C. it is the date when complaint was filed or report was lodged and machinery was put into action. Court held in para 10 as under:
"10. On facts of this case and based on the arguments advanced before us we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to delay in instituting the prosecution or to delay in taking cognizance. As noted above according to learned counsel for the appellants the limitation prescribed under the above Chapter applies to taking of cognizance by the concerned court therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be inspired by the Chapter-Heading of Chapter XXXVI of the Code which reads thus : "Limitation for taking cognizance of certain offences". It is primarily based on the above language of the Heading of the Chapter the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded. The said Section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase "actus curiae neminem gravabit" which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra)" (emphasis added)
15. Earlier also this very view was reiterated in Surinder Mohan Vikal vs. Ascharj Lal Chopra AIR 1978 SC 986.
16. In view of above, I do not find any illegality or infirmity in the proceedings so as to warrant interference. This application lacks merit and is accordingly dismissed.
17. Interim order, if any, stands vacated.
Order Date :- 07.02.2020 PS