## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN**
## **MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934**
## **CRL.A.No. 2688 of 2008 ( )**
**------------------------------AGAINST THE ORDER/JUDGMENT IN CRLP.1706/2008 DATED 07-11-2008 CC.681/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT - II, OTTAPPALAM ----------------**
## **APPELLANT/COMPLAINANT:**
**---------------------------------**
## **T.M.SHAMSUDEEN, S/O.T.K.MUHAMMED 40 YEARS, THONIKADAVIL HOUSE, SHORNUR PO. OTTAPPALAM.**
## **BY ADV. SRI.CIBI THOMAS**
## **RESPONDENTS/ACCUSED & STATE:**
**-----------------------------------------**
**1. PUTHIYAPURAYIL KALLARAKKAL YOUSEF HAJI S/O.KUNJALI HAJI, P.K.HOUSE, PALAYD PO. THALASSERY.**
**2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**R1 BY ADVS. SRI.V.B.RAMANUNNI SRI.K.MOHANAKANNAN**
**R2 BY PUBLIC PROSECUTOR SMT. S. HYMA**
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**svs**
## **V.K.MOHANAN, J.**
## **----------------------------------------**
## **Crl.A.No. 2688 of 2008**
## **----------------------------------------**
Dated this the 26[th] day of March, 2012
## **J U D G M E N T**
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short
'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Code of Criminal Procedure.
2. Alleging the offence punishable under Section 138 of the N.I.Act connected with the dishonour of cheque for an amount of `12,65,000/-, the appellant approached the court below by filing a complaint, based upon which cognizance was taken by the court of Judicial First Class Magistrate-II, Ottappalam and instituted C.C.No.681 of 2005. The learned Magistrate, as per the impugned judgment, has found that the entire proceedings commenced on the basis of a complaint filed beyond the period of limitation prescribed under Section 142(b) of the N.I.Act are vitiated and thus, the
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proceedings are therefore ended in the acquittal of the accused. It is the above finding and order of acquittal challenged in this appeal.
3. Learned counsel for the appellant submitted that though the appellant/complainant, at the time when he realised that there was delay in filing the complaint, approached the court by filing two petitions i.e., CMP 408/08 has been filed for receiving CMP 409/08 out of time, which was filed for condoning the delay of five days. But the leaned Magistrate dismissed those petitions arbitrarily and illegally and based upon such order, the learned Magistrate issued the impugned judgment which is not legally and factually sustainable, submits the learned counsel. On the other hand, the learned counsel for the respondents submitted that the very process of taking cognizance by the court below was illegal, which was subsequently rectified as per the impugned judgment. According to learned counsel for the respondents, the complaint ought to have been filed on 26.6.2005, but it was filed only on 30.6.2005 with the delay of five
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days. According to the learned counsel, in view of Section 142(b) of the N.I.Act, the learned Magistrate ought not have taken cognizance, but the said material defect was not noted by the court below, at the time of taking cognizance, but the said defect or wrong committed by the court below is subsequently corrected as per the judgment under challenge and therefore, the present appeal is devoid of any merit because of the inherent defect of the prosecution in filing the complaint in time. In support of the above submission, learned counsel for the respondents placed reliance upon the decisions reported in **Praveen** v. **Ismayil** [2005(1) KLT 559] and **Tameeshwar Vaishnav** v. **Ramvishal Gupta** [2010(2) SCC 329].
4. I have carefully considered the submission made by the learned counsel for the appellant as well as the respondents. I have also perused the judgment of the trial court and the common order dated 3.10.2008 in CMP No.408/2008 and 409/2008 in CC No.681/2005 of the court below. It is beyond dispute that the cheque
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was dishonoured on 26.4.2005 and statutory notice was sent on 11.5.2005 and as per the above details, the cause of action arose on 26.5.2005 to file the complaint. But the complaint is filed only on 30.6.2005. The above mistake was not noticed by the court below, at the time of taking cognizance and the trial was proceeded during which the complainant is examined as PW1 and produced Exts.P1 to P3. Though no witness is examined from the side of the defence, Ext.D1 document was marked. Going by the judgment of the trial court, it can be seen that the learned Magistrate has not considered the other merits of the case advanced by the complainant as well as the defence and the entire discussion and finding are based upon the main issue i.e., whether the complaint is maintainable. Ext.P1 is the cheque in question which is dated 27.3.2005. Ext.P1(a) is the cheque dishonour slip issued by the State Bank of India, Thalassery and Ext.P1(b) is the intimation given by the Canara Bank, Shornur Branch to the complainant. Ext.P1(b) is dated 26.4.2005. Ext.P2 is the
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statutory notice dated 7.5.2005. Ext.P2(a) is the postal receipt bearing the same date i.e., 7.5.2005. Ext.P2(b) is the A/D card bearing the signature of the accused from where it can be seen that the accused had received Ext.P2 notice on 11.5.2005. Thus, the cause of action arose on 27.5.2005 as the accused failed to pay the cheque amount. But, the complaint was filed only on 30.6.2005 after the period of one month from 27.5.2005, the date of which the cause of action arises. It is beyond dispute that on the date of filing of the complaint, amendment to Section 142 has come into effect. Therefore, even if there was delay in filing the complaint, it was up to the discretion of the court where the complaint is filed, to condone the delay if the court is moved with such prayer and if the same is reasonably explained and convinced to the satisfaction of the court, in view of the amendment to Section 142. After condoning the delay, the court can take cognizance, even if it is filed beyond the period prescribed in clause (a) to Section 142. But, in the present case, at the time of filing
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the complaint, no petition was filed to condone the delay. But ignoring the above defect of the prosecution/complainant, the court below has already taken cognizance and the trial was proceeded. Thus, when the evidence is over and the case is posted for the judgment, the complainant moved two applications i.e., CMP Nos.408 and 409 of 2008 which I indicated earlier. The learned Magistrate by order dated 3.10.2008 dismissed those petitions assigning numerous reasons. I am not proposed to re-state the reasoning given by the learned Magistrate while dismissing those petitions. Though in different occasions, the Apex Court, in a private complaint connected with IPC offence, has held that correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. Thus, in the present case, in the light of the particular provisions contained in the N.I.Act, it can be seen that the Magistrate court has no jurisdiction to take cognizance upon a complaint connected with
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the dishonour of cheque, if such a complaint is filed beyond the time limit prescribed by the particular statute. But the said jurisdictional question due to inadvertent mistake was not taken note of by the learned Magistrate, who took cognizance. Therefore, filing of the complaint within the stipulated time is a condition precedent to take cognizance. In the present case, no petition supported by any affidavit is filed to condone such a delay even though the delay is only minor. Therefore, the court ought not have taken cognizance upon the belated complaint. So the decision taken by the then learned Magistrate to take cognizance is a perverse one and the same was not based upon any material. Therefore, it was incumbent upon the trial court to correct the inherent mistake committed, when the cognizance of the offence was taken, though belatedly and thereby to render justice which is the exclusive responsibility of the court which meant for administration of justice.
5. In the light of the above discussion, I am of the view that
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the learned Magistrate is fully justified in his finding and acquitting the accused, especially when the complaint is barred by limitation. Therefore, even if this appeal is further entertained, there is no scope for any interference with the finding of the court below and the order of acquittal recorded by the trial court.
Therefore, the appeal fails and accordingly, the same is dismissed.
**V.K.MOHANAN,Judge.**
MBS/
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**V.K.MOHANAN, J** .
CRL.A.No. 434 OF 2003
**JUDGMENT**
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Dated:11.11.2011
