At, High Court of Judicature at Bombay
By, THE HONOURABLE MRS. JUSTICE NISHITA MHATRE
Mr.Mahesh Subramaniam for Petitioner. Mr.D.P. Adsule, APP, for Respondent-State.
The petitioner has challenged the judgment and order passed on 12.7.2000 passed by the Additional District and Sessions Judge, Pune in Criminal Revision Application No.77 of 1997 whereby the complaint in case No.2385 of 1996 is quashed.
2.The facts giving rise to the present petition are as follows:
A work order was issued in favour of the petitioner by Respondent No.1 for supply of concrete to its site and Hinjawadi on 10.4.1996. Respondent No.1 issued a cheque of Rs.5 lacs on 10.6.1996 for the outstanding amount payable in favour of the petitioner. On 18.6.1996, this cheque was returned to the petitioner by the bank with the endorsement "payment stopped by the drawer". A notice was issued by the petitioner through its advocate on 27.6.1996 to Respondent No.1 u/s 138 of the Negotiable Instruments Act demanding payment of the amount for which the dishonoured cheque had been drawn. No acknowledgement was received by the petitioner for 8 or 10 days. Therefore, a complaint was lodged by the petitioner with the post office and the petitioner was informed that the complaint would not be entertained till the expiry of 21 days from the date of sending the registered letter. Correspondence ensued between the advocate for the petitioner and the Senior Superintendent of post office regarding the receipt of the acknowledgement.
3.Ultimately on 14.8.1996, the Senior Superintendent of Post offices informed the advocate for the petitioner through a letter received by the advocate on 16.8.1996 that the registered letter dated 27.6.1996 demanding payment from the respondent No.1 was served on Respondent No.1 on 28.6.1996. Thereafter on 17.8.1996, the petitioner filed a complaint under section 138 of the Negotiable Instruments Act before the JMFC, Pune. After the complaint was verified, the petitioner filed an application for condoning the delay in filing its reply on 9.10.1996. The trial Court condoned the delay in filing the criminal complaint and issued process against Respondent No.1. Aggrieved by this order, Respondent No.1 filed criminal revision application No.77 of 1997 before the additional District and Sessions Judge, Pune on 19.2.1997. The Sessions Court by its order dated 12.7.2000 allowed the revision by observing that the delay could not have been condoned by the trial Court. It was held that the complaint was filed beyond the statutory period of limitation and, therefore, the complaint itself was not maintainable and was quashed.
4.The main contention raised by the learned advocate for the petitioner is that the Sessions Court has erred in passing the impugned order without noting the provisions of section 138 of the Act. He submits that the trial Court is empowered to condone the delay in filing the complaint. When the trial Court has condoned the delay there was no need for the Sessions Court to entertain the revision. He submits that in the case of R.K. Chawla & anr. vs. M/s.Goa Antibiotics & Pharmaceuticals Ltd. & anr., 2005 (6) AIR Bom R 564, a learned Single Judge of this court has interpreted the provisions of sections 138 and 142 of the Negotiable instruments Act and has held that once the proviso to clause (b) of section 142 comes into force the criminal complaint could not be dismissed on the ground of limitation as the Court would exercise its discretion to condone the delay.
5.Nobody has appeared for the respondent, though served. Section 142 of the Negotiable Instruments Act reads as under:
"142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -
(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.
(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.This section has been inserted and has come into effect from 6.2.2003. There can be no dispute that a revision was not pending when this provision came into force. In the case of R.K. Chawla (supra), the facts involved were different from the facts in the present case. The trial Court had issued process against the accused in that case on 6.3.2000 after concluding that the complaint was filed in time. The Sessions Court concluded that there was a delay in filing the complaint and therefore dismissed the complaint. This Court has observed that when the proviso to section 142 has come into effect on 24.1.2002, it would apply retrospectively to pending cases. The Court has also considered whether if the amendment was applied it would violate the provisions of article 20 of the Constitution of India. The learned Judge has held that no old case which has been concluded on the point of limitation can be revived by taking recourse to the proviso to clause (b) of section 142. In the present case, there can be no dispute that the proviso has come on to the statute book only after the complaint was dismissed. The submission of the learned counsel that the proviso would permit the complainant to maintain the complaint although the order of the Sessions Judge was passed two years prior to the provision being brought on the statute book has to be considered.
7.The question which is material is if the provision has come into effect during the pendency of this petition, w
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hether the petitioner can get any relief. In my opinion, if the petitioner has been granted relief in the case before R.K. Chawla's case (supra) because the amendment came into effect during the pendency of the revision, there is no reason why such a provision could not extend to the pendency of this petition. In this view of the matter, the petitioner must succeed. Apart from this, the delay has been satisfactorily explained and therefore the order of the trial Court need not be interfered with. 8.In the circumstances, the petition is allowed. The order of the Sessions Court is quashed and set aside. Rule made absolute. No order as to costs.