Roy v. P.S. Sojan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** **Crl.Rev.Pet.No. 3526 of 2005 ( ) ---------------------------------** **AGAINST THE ORDER IN C.M.P. NO.96/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA DATED 30.9.2005** **-----------------** **REVISION PETITIONER(S)/PETITIONER :** **---------------------------------** **ROY, S/O.GEORGE, THARAYIL HOUSE, KATTAPPANA VILLAGE, KATTAPPANA.** **BY ADVS.SRI.K.M.KURIAN SRI.P.VIJAYAKUMAR** **RESPONDENT(S)/RESPONDENT :** **------------------------** **P.S.SOJAN, PARACKAL HOUSE, KATTAPPANA VILLAGE, KATTAPPANA KARA, UDUMBENCHOLA TALUK.** **BY PUBLIC PROSECUTOR BY ADV. SRI.SREELAL N.WARRIER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** **Crl.Rev.Pet.No. 3526 of 2005 ( ) -------------------------------** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES:** **ANNEXURE A : COPY OF THE CMP NO.96 OF 2005 IN THE FILE OF JMFC, KATTAPANA.** **ANNEXURE B : COPY OF CRIMINAL COMPLAINT IN THE FILE OF JFMC, KATTAPPANA.** **ANNEXURE C : COPY OF OBJECTION IN CMP NO.97 OF 2005 IN THE FILE OF JFMC, KATTAPPANA.** **ANNEXURE D : COPY OF DISCHARGE CARD.** **ANNEXURE E : COPY OF ORDER OF JMFC, KATTAPPANA IN CMP NO.96 OF 2005.** ## **RESPONDENT(S) ANNEXURES: NIL** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **P.D. RAJAN, J.** --------------------------- ## **Crl.R.P. No.3526 of 2005** ---------------------------------------------Dated this the 20[th] day of October, 2016 ## **O R D E R** **----------------** This revision petition is filed by the complainant against the order in C.M.P. No.96 of 2005 by the Judicial First Class Magistrate Court, Kattappana which was filed under Sec.138 of the NI Act. The complaint has to be filed on or before 09.12.2004, but the revision petitioner could file the petition only on 05.01.2005. There was a delay of 28 days in preferring the complaint in the trial court. Revision petitioner contended that his father was admitted in Medical College Hospital, Kottayam. He was looking after him for two months since there was nobody to take care of him at that time. Hence, he prays to condone the delay. He also produced Exts.P1 to P4. The learned Magistrate dismissed the petition. Being aggrieved by that, the complainant preferred this revision petition. 2. Learned counsel appearing for the revision petitioner contended that his father was under treatment ## Crl.R.P. No.3526 of 2005 2 at Medical College Hospital, Kottayam but was not admitted in that hospital. He is residing at Kattappana, which is 140 kilometers away from the Medical College Hospital and therefore he stayed in his relative's house at Kottayam and took treatment. Only on 10.12.2004, he got admission as inpatient and continued the treatment. Hence he submits that there was no deliberate latches from his side and prays to condone the delay. 3. Section 142 of the Negotiable Instrument Act reads as follows: Cognizance of offences;- 1. 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; [Provided 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] Crl.R.P. No.3526 of 2005 3 (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. (2) The offence under Section 138 shall be inquired into an tried only by a court within whose local jurisdiction- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the holder or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. 4. From a reading of Sec.142(1) of the NI Act, it is clear that the proviso to clause (b) was inserted vide amendment of 2001 to empower the court to condone the delay in appropriate cases. In that situation, the complainant has to satisfy the court about the cause of Crl.R.P. No.3526 of 2005 4 delay. Normally the court can take cognizance of the offence under Sec.138 of the NI Act, when the complainant files a complaint in writing or the holder of the cheque in due course within one month from the date of cause of action according to Sec.138(c) of the Act. This shows that for taking cognizance of the offence, no limitation period was provided in the above section. The limitation provided under Sec.142 of the Act is only for filing complaint alone. Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 inserted clause(b) of S.142 on 06.02.2003 empowers the court to take cognizance of a complaint after the expiry of the period of limitation, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. But, in the amended provision, it is not mentioned that Sec.142(b) by the Act has any retrospective operation that is because the substantive right generally operate prospectively. Relied the decision reported in **Anil Kumar Goel** V. **Kishan** ## Crl.R.P. No.3526 of 2005 5 **Chand Kaura [2008 Cri.L.J. 1386]** . Therefore, the retrospective operation cannot be granted on those complaints filed before 06.02.2003. ## 5. Karnataka High Court in **Vinayak v. Suhas Padmakar Asukar [2005 Cri.L.J. 218]** held that; Negotiable Instruments Act, 1881-- S.138, S.142Dishonour of cheque- Limitation for taking cognizance- If the complainant has presented the complaint within one month before the Magistrate and if cognizance is taken by the Court at a later date, the petitioner cannot contend that the cognizance taken by the Court below as barred by limitation-- Before taking cognizance, the Court has to consider only the provisions of (a) and (b) of S.142 only-Complaint was lodged within one month of cause of action-- No limitation is provided under S.142 for taking cognizance-- Accused cannot be discharged. Therefore, a complaint in writing has to be filed in the trial court with regard to the averments and it should be signed by the complainant. If such formalities are properly complied by the complainant, there is no harm in taking cognizance of the offence, provided the complainant has to satisfy the court that he has sufficient cause for his non representation for not making complaint ## Crl.R.P. No.3526 of 2005 6 within such period. The respondent has no serious dispute with regard to the averments in this case. The trial court failed to appreciate that position and dismissed the complaint. In the circumstance, the order of dismissal passed by the learned Magistrate is set aside and the matter is remitted to the trial court for fresh consideration. This Criminal Revision Petition is disposed of as above. NS/20/10/2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge