Rajiv Gupta v. The State Of Bihar & Anr

Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 husband of the complainant but had not returned the loan amount to him. The money was transacted in presence of witnesses who disclosed that more than Rs.15,00,000/- was taken by the accused from the husband of the complainant which was reduced in agreement duly signed by the accused in presence of Duresh Nandan, who put his signature on the agreement. When the complainant could know about giving of loan to the petitioner and not returning the same, the complainant called the petitioner and requested for return of the said amount. The accused petitioner assured for the return of the said amount but the same was not returned back. On persistent request, accused gave three post dated cheques in favour of complainant as payment against the different loans vide Cheque Nos. 267571 dated 22nd October 2008 for Rs.5,00,000/ of Punjab National Bank, Boring Road, Patna, Cheque No. 267572 dated 22.10.2008 for Rs.15,000/- of the same Bank and Cheque No. 943159 dated 27.08.2008 for Rs.5,50,000/- of the same Bank, Punaichak, Patna. The complainant presented cheques for clearance but all were returned dishonoured on account of insufficient fund, the complaint case was filed by O.P. No. 2 against petitioner making allegation of dishonour of cheques and thereby misappropriation of her money. The court below took cognizance u/s 420 and 406 of the Indian Penal Code and 138 of 3 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 N.I. Act. At the stage of framing of charge an application for discharge was filed and the same was rejected by the impugned order while rejecting the discharge petition, court below considered the issue of limitation where it has been mentioned, the complaint petition in relation to N.I.Act was barred by limitation of 53 days, the Court answered in the term, he would presume, the Court while taking cognizance had condoned the delay. Counsel for the petitioner submits that the court cannot condone the delay without proper application and cannot presume that the delay was condoned, if condoned without any notice to the other side is bad in law. As per the law, delay can only be condoned on filing the proper application and after giving appropriate notice to the other side. In this case it is an admitted fact that no application was filed so much so that before condoning the delay, petitioner was not heard and there cannot be any presumption in law in condoning the delay. The counsel for the petitioner has relied on the judgment reported in 1995-SC 231 (State of Maharastra vs. Sharadchandra Vinayak) So far the offence under the Penal Code, position is different as issue of limitation is not involved and as such dismissing of discharge application with respect to Penal Code 4 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 cannot be faulted. So far in connection with the offence under N.I. Counsel for the O.P. also agrees that without there being any application for condonation without there being specific order of condoning the delay it cannot be assumed and presumed, the Court had condoned the delay at the time of taking cognizance. For proper appreciation, Sections 138 and 142 of the N.I.Act are as follows: Section 138 : Dishonour of cheque for insufficiency, etc., of funds in the account. – Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Provided that nothing contained in this section shall 5 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 apply unless -- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawyer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; © the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of he cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, ―debt or other liability‖ means a legally enforceable debt or other liability. Section 142: Cognizance of offences. – Notwith- standing anything contained in the Code of Criminal Procedure 6 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 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. (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.‖ According to Section 142 of the N.I.Act, complaint is to be filed within one month from the date on which the cause of action arises under clause (c) of Section 138. Earlier there was no provision for condonation of delay but by the amending Act of amendment of 2002, the Legislature has added proviso where the Legislature has empowered to the court to 7 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 condone the delay provided the complainant satisfies the court by showing sufficient cause for not filing complaint petition within the time, making prayer for condonation. In yet general law, the accused has no right to be heard before cognizance, as has been decided by the Hon’ble Supreme Court in AIR 1963 SC 1430 (Chandradeo Singh V. Prakash Chandra Bose) where the Hon’ble Supreme Court has held before the order of cognizance, the accused has no locus to be heard but the N.I.Act is a Special Act which provides for condonation of delay and the Hon’ble Supreme Court in Sharadchandra Vinayak case (supra) has held that the court taking cognizance cannot condone the delay without hearing the accused person are as follows:- ―In our view, High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation 8 Patna High Court Cr.Misc. No.10918 of 2011 (7) dt.06-11-2012 of delay afresh after hearing both sides.‖ This Court in case of Jairam Sharma vs. the State of Bihar and another 2010 (2) P.L.J.R. 646 has taken view, N.I.Act is special provision having engrafted the provision of condonation of delay, subject to notice to other side. In this view of the matter, the order of cognizance in connection with Section 138 of N.I.Act is quashed and the matter is remanded back to the court below with liberty to O.P. No. 2 to file petition for condonation of delay. If any such application is filed by the complainant, O.P. No. 2, explaining the delay, the court may pass the orders in accordance with law. So far the offence under the Penal Code are concerned, it is not any way affected by this order as the court below has rightly rejected the discharge petition in connection with offence under Penal Code. Any observation made, will not prejudice the petitioner. Accordingly, this petition is allowed to the extent indicated above. Jay/- (Shivaji Pandey, J)