ORDER
1. The only argument advanced in this petition is that Section 5 of the Limitation Act is not applicable to condone the delay in presenting the complaint beyond the period of one month prescribed under S. 142 of the Negotiable Instruments Act (for short 'the Act').
2. The brief facts of the case are : respondent filed a complaint under S. 200 Cr.P.C. against the petitioners for the alleged offence under S. 138 of the Act. He has also filed an application under S. 5 of the Limitation Act to condone the delay in presenting the complaint beyond the prescribed period. The learned Magistrate has taken cognizance of the offence, recorded the sworn statement and thereafter, directed to issue process. Subsequently, the Magistrate considered the I.A. without giving an opportunity to the accused persons and condoned the delay in presenting the complaint. This order is questioned by the accused in this petition.
3. Heard the counsel on both sides.
4. As stated earlier, the only question that arises for consideration is as to whether S. 5 of the Limitation Act is applicable to condone the delay in presenting the complaint ?
5. The learned counsel for the petitioner has strenuously contended that Section 5 is applicable only in regard to an appeal and application. A complaint cannot be construed as an application as provided under S. 5 of the Limitation Act. Therefore, the Magistrate has committed an error in condoning the delay.
6. In view of this submission, it is now necessary to refer to Section 5 of the Limitation Act which reads :
'Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.'
Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.'
So, as rightly pointed out by the learned counsel for the petitioner, Section 5 refers only to any appeal or any application. It does not refer to any suit or complaint. On the basis of it, he submitted that the complaint is an original proceedings and therefore, S. 5 is not applicable and the question of condoning the delay does not arise.
7. This question was considered by the Hon'ble High Court of Kerala in a decision reported in 1996 (1) Crimes 19 : 1995 AIHC 2962 Kunhimuhammed v. Khadeeja wherein it is held that a complaint under S. 138 of the Act made beyond 1 month of date on which cause of action has arisen is barred and Magistrate has no jurisdiction to take cognizance by condoning the delay either under S. 473 Cr.P.C. or under Section 5 of the Limitation Act. The High Court has considered the meaning of 'the application or petition' in respect of its benefit under S. 5 of the Limitation Act which can be claimed in appropriate cases. In that connection, the Ss. 96, 167(6), 218, 223, 243(2), 244(2), 254(2), 291(2), 296(2), 306(3), 335(3), 339,, 397(3), 402(1), (2), (3) & (4), 406, 415, 382 and 415(3) of the Cr.P.C. wherever the word 'application' or 'petition' appeared were considered to find out the correct object and purpose of using the words 'application' in the respective sections were discussed by the Court. It also refers to Ss. 98, 195, 198, 199 of Cr.P.C. wherever the word 'complaint' is used. Having considered all these sections, it is held that the above provisions are not exhaustive. Generally every motion before a Criminal Court has to be in the form of a complaint, application or petition. It seems to be clear that the words application, complaint and petition are neither interchangeable nor have the same meaning or import. A complaint under section 142 of the Act is not the same as an application. It is neither a petition nor the person making it a petitioner. Therefore, it is clear that the Court has come to the conclusion that the words used in S. 5 of the Limitation Act as 'appeal' and 'application' would not include the word 'complaint' as appearing under S. 2(d) of the Cr.P.C. The Act also refers to the complaint to be filed within one month. Therefore, it is clear that the complaint does not come within the purview of S. 5 of the Act. However, the learned counsel for the respondent submitted that notwithstanding S. 5 does not refer to the complaint, in view of S. 29(3) of the Limitation Act, the Limitation Act is made applicable even in regard to the complaint. Under these circumstances, it is necessary to refer to S. 29 of the Limitation Act, which reads :
'(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Section 25 & 26 & the definition of 'easement' in S. 2 shall not apply to cases arising in the territories to which the Indian Easement Act, 1882, may for the time being extend.'
From a bald reading of this Section, it appears that Sections 4 to 24 are made applicable. On the basis of it, the learned counsel for the respt. submitted that the Section 5 of the Limitation Act is also applicable in respect of a complaint to be lodged. Section 2(d) of the Cr.P.C. defines the 'complaint', which reads :
' 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation. - A report made by a police officer in a case which discloses, after investigation, the commission of a non cognizable offence shall be deemed to be a complaint; & the police officer by whom such report is made shall be deemed to be the complainant;'
8. The Kerala High Court also has discussed that the Code also provides for a condition for taking cognizance of an offence on a complaint & the procedure to be followed thereafter. The discretion is also seen made in the Code between complaint and complainant. Therefore, from the above discussion it is clear with regard to the original proceedings by way of complaint, the period prescribed thereof has to be adhered to. However the learned counsel for the respondent submitted that the Orissa High Court in Janardhan Mohapatra v. Saroj Kumar Choudhury reported in 1993 Cri LJ 1751 has held (at page 1756) :
'A complaint where a prayer has been made either to take cognizance or to convict an accused, is a petn. which term comes within the definition 'application' as used in S. 29(2) of the Limitation Act and therefore, S. 5 of the Limitation Act applies. Delay in making complaint beyond the period of limitation prescribed in S. 142(b) of the Negotiable Instruments Act can be condoned and cognizance can be taken since.'
This decision also was considered by the Kerala High Court in the decision referred to above & the same was not agreed with the correctness of the decision of the Orissa High Court. In this background, it is now necessary to find out the language used in S. 142 of the Act which reads :
'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;
(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.'
From a reading of this Section, it is abundantly clear that unless the conditions stipulated therein are satisfied, the Magistrate cannot take cognizance of the offence. One of the conditions stipulated is that the complaint has to be lodged within one month from the date on which the cause of action arose under Clause (c) of the proviso to section 138. The proviso (c) to S. 138 reads thus :
'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 the cheque, within fifteen days of the receipt of the said notice.' As soon as 15 days expire from the receipt of the notice issued by the drawee, the offence is said to have been committed. Under those circumstances, the Legislature intended that the complaint should be filed within one month from the date of arising of cause of action. The object with which the time is fixed is with a view to enhance the acceptability of the cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. The Chapter XVII of the Act also does not make any mention of application of S. 5 of the Limitation Act. Under those circumstances, I am of the considered view that the Legislature intended that the complaint should be filed within one month from the date of accrual of cause of action and the application of S. 5 was not made applicable to this complaint.
9. For the foregoing reasons, this petition deserves to be allowed and the order passed by the learned Magistrate is liable to be set aside. In the result, therefore, proceed to pass the following :