At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE SMT. SHEEMA ALI KHAN
For the Appearing Parties: Ashwani Kumar Singh, Gopesh Kumar, Advocates.
SHEEMA ALI KHAN, J.
(1.) Heard the counsel for the petitioner and the State. Nobody appears for the O.P. No. 2. Although a Vakalatnama was filed on behalf of the O.P. No. 2.
(2.) The case of the complainant, Gayatri Prasad Agarwal is that he had paid one Lac rupees to one Daud Dayal Agarwal as a friendly loan. In the meantime, Daud Dayal Agarwal died in the year 2001 and his wife Usha Rani Agarwal proposed to sell a house t
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o Birendra Kumar Singh (Petitioner). Birendra Kumar Singh as an advance, issued four post dated cheques of Rs. 25,000 each.
(3.) Later on, he took one cheque back and paid Rs. 25,000/- in cash. The rest three cheques were presented in the bank on 16.01.2002 and 28.01.2002 which were returned with the Memo on 15.02.2002 showing "funds insufficient".
(4.) The complainant, thereafter, gave a legal notice on 27.02.2002 which was acknowledged by the accused on 7.03.2002.
(5.) On the basis of these allegations, a complaint case was filed under Section 183 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code.
(6.) The case was sent for investigation under Section 156(3) of the Code of Criminal procedure to the police.
(7.) After investigation, the police submitted a final form wherein the Investigating Officer has found insufficient evidence to Proceed with the case.
(8.) The final form was presented before the Court and the Chief Judicial Magistrate, Gaya differed from the police report and took cognizance under Section 138 of the Negotiable Instruments Act on 09.10.2003.
(9.) The present application has been filed against the order refusing to discharge the petitioner on the ground that the entire prosecution should be quashed because it does not make fulfil the mandatory requirements as mentioned in Section 142(b) of the Negotiable Instruments Act. As noted above, the dates have been mentioned on which the cheques were presented and the notice was issued by the complainant to the petitioner.
(10.) Section 142(b) of the Negotiable Instruments Act reads as follows: 142. Cognizance of offences-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (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.
(11.) Section 138(a) of the Negotiable Instruments Act reads as follows: "Section 138(a): On the presentation to the Bank within a period of six months from the date on which it is withdrawn or within the period of its validity, whichever is earlier."
(12.) The complaint thus should be filed within one month after drawer of the cheque has received notice, and 15 days thereafter have elapsed.
(13.) In this case the complaint petition has been filed on 18.05.2002 and even if it is presumed that the cut-off date would be 07.03.2002, the date on which a notice was acknowledged. The date for filing the complaint would be 22.03.2002, however, the complaint has been filed after a delay of two months and in that view of the matter, the cognizance has wrongly been taken for the offence under Section 138 of the Negotiable Instruments Act.
(14.) In a case where no cognizance could have been taken under the mandatory provision of Section 142 of the Negotiable Instruments Act, the order of refusing to discharge the petitioner is obviously against the mandate of the law.
(15.) A reference can be made for the aforesaid proposal of law in a case replied in Sil Intport v. Ex in Aides Silk wherein the Apex Court has quashed the judgment rendered while hearing an appeal under Section 138 of the Negotiable Instruments Act holding that Section 142 admits of no doubt that the Magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date of which the cause of action arose. In other words, the cause of action would arise soon after the completion of the offence and period of limitation for filing the application starts simultaneously running. This view has further been upheld by the Supreme Court in 2005 (3) P.L.J.R. page 115 (SC).
(16.) In the result, the order dated 09.06.2005 refusing to discharge the petitioner in G.R. No.1338 of 2002 giving rise to Tr. No. 1023 of 2005 pending in the Court of Judicial Magistrate, Gaya is quashed. Petition allowed