1. This is an appeal against the order of acquittal dated 28-12-1993, in CC No. 120 of 1989 on the file of the learned Additional Civil Judge and Chief Judicial Magistrate, Mandya acquitting the respondent, who was charged on a private complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as the Act and Section 420 of the IPC.
2. A private complaint was filed by the appellant against the respondent alleging that the respondent-accused purchased fruits from the complainant worth Rs. 8,030/- and issued cheque for Rs. 8,000/- on 5-7-1989 in favour of the complainant and when it was presented to the Bank, it was returned with endorsement 'refer to drawer'. It was found that the respondent-accused, who had issued the cheque had no sufficient funds at his credit. As provided under Section 138 of the Act, the complainant-appellant issued notice within the time allowed, to the respondent, and thereafter filed the complaint after a delay of 24 days.
3. The Trial Court took cognizance of the offence and registered the case and the trial proceeded. The Trial Court held that there was money transaction between the complainant and the accused and the accused had issued 'the cheque in question in favour of the complainant in dis-charge'of his liability and later on it was dishonoured and the accused-respondent evaded to receive the notice sent by the complainant. The Trial Court held that there was compliance of the provisions of Section 138 of the Act. It also held that the complainant has proved that the liability existed on the part of the accused to repay the amount towards the cost of the fruits purchased by the accused from the complainant. It further held that the cheque was dishonoured on the ground of insufficiency of funds.
4. After holding the above points in favour of the complainant, the Trial Court considered the question of delay in filing the complaint. The Trial Court found that the cause of action arose on 16-9-1989 and as provided for under Section 142 of the Act, the complaint ought to have been filed on or before 16-10-1989, but the complaint was filed on 9-11-1989 with a delay of 24 days. The Trial Court dismissed the complaint on the ground of delay. It also rejected the application filed by the complainant for condonation of delay on the ground that the same has been filed belatedly. It accordingly dismissed the complaint.
5. Sri S.V. Tilgul, the learned Counsel appearing for the appellant contended that the Trial Court was wrong in not condoning the delay in filing the complaint. It is submitted that the complainant has properly explained the delay and sufficient reasons have been given by the complainant for the delay in filing the complaint and the Trial Court ought to have condoned the delay and convicted the respondent.
6. The important question that arises for consideration in this appeal is, whether the Trial Court had jurisdiction to take cognizance of the offence after a period of one month as provided under Section 142 of the Act by condoning the delay in filing the complaint.
7. Section 142 of the Act reads as under:
142. Cognizance of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no Court shall take cognizance of any offence 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.
8. The learned Counsel has relied upon a judgment of the Orissa High Court in Janardhan Mohapatra v Saroj Kumar Choudhury. A Single Judge of the Orissa High Court has held that complaint is a petition, which term comes within the definition of 'application' as used in Section 29(2) of the Limitation Act and therefore, Section 5 of the Limitation Act applies and the delay in making a complaint beyond the period of limitation prescribed in Section 142(b) of the Act can be condoned and thereafter cognizance can be taken. The learned Judge has referred to the judgment of the Hon'ble Supreme Court in Mangu Ram v Municipal Corporation of Delhi. In the said case, the Hon'ble Supreme Court was considering the applicability of Section 5 of the Limitation Act to an application for Special Leave under Section 417(3) of the Criminal Procedure Code. In the said decision, the Hon'ble Supreme Court has held in para 7 as follows:
7. There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908 Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than thosecontained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani's case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani's case, supra, the time-limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court wouldhave the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court.
In the above judgment, the Hon'ble Supreme Court had held that Section 5 of the Limitation Act is made applicable by sub-section (2) of Section 29 of the Limitation Act for the purpose of extending tbe period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation and it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. Sections 138 to 142 of the Act, which has been added to the said Act is a special law. It is true that there is no specific exclusion from the applicability of Limitation Act.
9. In Hukumdev Narain Yadav v Lalit Narain Mishra, the Hon'ble Supreme Court has held in para 17 as follows:
17. Though Section 29(2) of tbe Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Section 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words 'expressly excluded' would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, itwould nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. It will be seen that Section 81 is not the only section mentioned in Section 86, and if the Limitation Act where to apply to an election petition under Section 81 it should equally apply to Sections 82 and 117 because under Section 86, the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial.
Thus the Hon'ble Supreme Court in the above cited judgment had considered what is express exclusion in the provisions of the Limitation Act. The Hon'ble Supreme Court had held that in the event any case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions of the special law or the nature of the subject-matter and scheme of the special law exclude their operation. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code and if on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act.
10. Following the said principles enunciated by the Hon'ble Supreme Court in the above cited judgment, what is to be considered is whether Sections 138 to 142 of the Act is a special law and whether the said special law excludes the provisions of the Limitation Act. There cannot be any doubt that Sections 138 to 142 of the Act is a special law and the intentment of the provisions is to penalise a person, who issues a cheque without there being sufficient money in the account and that the cheque had bounced for want of funds in his account. The drawee of such a cheque has always a right to recover the amount involved in the cheque by filing a civil suit. But now in view of the amended provisions of theAct, a penal provision is made thereunder and according to which a person, who issues a cheque without there being sufficient funds to his credit in the account is liable to be prosecuted if an offence is made out under Section 138 of the Act. Under the scheme of the above provisions of Sections 138 to 142 of the Act, to convict a person for the said offence, certain conditions have to be fulfilled by the drawee of the cheque. One of the conditions is that on getting an endorsement from the Bank about the dishonour of the cheque for want of funds etc., it is made mandatory on the part of the drawee to issue a notice to the drawer of the cheque demanding the sum mentioned in the cheque as provided under Section 138 and thereafter wait for 15 clear days after the date of service of the notice on the drawee, the purpose is being to give an opportunity to the drawer to pay the same atleast within that 15 days of time. The cause of action to institute a criminal complaint thereupon arises only after the expiry of 15 days time as provided for under Section 138 from the date of service of notice. That apart under Section 142 of the Act, the Court is precluded from taking cognizance of an offence under Section 138 except upon a complaint in writing made by the drawee or holder in due course as the case may be and such complaint has to be filed within one month from the date of cause of action under clause (c) of the proviso to Section 138. If no such notice is issued, the drawee or holder in due course of the instrument is not entitled in law to file a complaint. Even if he files the complaint, the Court is precluded from taking cognizance of the same. Further the complaint has to be filed within the period prescribed under clause (b) of Section 142. In view of the mandatory provisions, there is no question of the Court condoning the delay in filing the complaint under Section 142 of the Act. The wordings of Sections 138 to 142 of the Act clearly exclude the operation of Sections 4 to 24 of the Limitation Act. If the principles laid down by the Hon'ble Supreme Court in Hukumdev's case, supra, is applied, it has to be held that the provisions of Sections 4 to 24 of the Limitation Act have no application to the penal provisions in Sections 138 to 142 of the Act.
11. The provisions of the Act fastened a criminal liability on a person, who issues a cheque knowing fully well that there is no money arranged in his account to meet the commitment in the cheque. The complainant who is entitled to recover the amount under the civil law, is also given a right to proceed against such a person under the criminal law. When a criminal liability is fastened in respect of civil liability under the provisions in Sections 138 to 142 of the Act, the same has to be construed strictly. It has to be noted in this context that the Legislature has used the word 'complaint' in Section 142 and in my considered view, it is not without purpose. Further it is to be noted that the word used therein is not a 'petition' or an 'application', but a 'complaint' and complaint alone. As Section 29(2) of the Limitation Act does not refer to a 'complaint', but it only refers to an 'application' or 'petition', therefore it appears to me that a criminal complaint cannot be termed as an 'application' or a 'petition' and that by no stretch of imagination, the complaint to a Criminal Court could be equated to that of an application or a petition. I am, therefore, clearly of the view that the provisions of Section 29(2) ofthe Limitation Act will not apply. If the complainant does not file a complaint under Section 142 of the Act within the time prescribed therein, the Court is precluded from taking the cognizance of an offence under Section 138 of the Act and that it has no jurisdiction to take cognizance of the offence by condoning the delay in filing the complaint.
12. In a recent decision, a Division Bench of this Court in Y. Krishna-murthy v Sharanappa, has held in paras 6 and 7 as under:
6. At the time of introduction of the Bill it was declared in the statement of objects that the amendment was being made to achieve the various objectives detailed therein. One of the objectives specified was.--
'to enhance the acceptability of 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'
It appears that the Chapter was substituted keeping in view the apprehended incalculable loss likely to be suffered in case the cheque was dishonoured. It was intended to provide a speedy remedy to avoid injury or inconvenience to the payee or endorsee in view of the fact that due to the latter's unexpected disappointment he will have to lick the dust while meeting his own future commitments made to others. The provision was made despite existence of the speedy remedy for the recovery of the amount payable under a negotiable instrument. To ensure promptitude in availing relief against the defaulters, the Legislature in its wisdom thought it fit to substitute the chapter with the object of assigning credibility and dependability to the negotiable instruments (cheque). Feeling that the civil remedy for recovery and compensation was not adequate to ensure the confidence sought to be achieved in favour of the payee or endorsee of Negotiable Instruments like cheque, the criminal prosecution was envisaged and provided in the larger interests of the persons and group of persons for whose benefit the Act had been enacted. The interests of honest and innocent drawer have been adequately protected by this Chapter. As the section is a departure from the usual remedies available in a Civil Court under the Act, the provisions are required to be strictly and punctually observed in the manner prescribed.
7. Keeping in view the purpose and object for which the Chapter was substituted in the Act, the meanings are required to be assigned to, 'the cause of action', as mentioned in Section 142 of the Act. A perusal of Sections 138 and 142 of the Act shows that a complaint has to be filed within one month of the date on whichthe cause of action arises under clause (c) of proviso to Section 138. The aforesaid clause provides that the liability under Section 138 would not arise unless the drawer of the cheque is shown to have failed to make the payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days of the receipt of the notice contemplated under the said section. The notice envisages of affording an opportunity to the payee to make the payment, with intimation that in case the payment was not made, the criminal prosecution were to ensue. The payee or the endorsee of the cheque, therefore, has the liberty to present the cheque as many time as he likes within the period of 6 months but once he serves a notice upon the drawer, the cause of action shall be deemed to have commenced and the period of limitation starts to run. It is an acknowledged position under law that once the period of limitation starts to run it cannot stop for any reason. The cause of action under the sections, for the purposes of filing the complaint, cannot be presumed to arise merely on the cheque being dishonoured but shall be deemed to have arisen after giving the notice of demand of the amount of the cheque by payee or holder in due course of the cheque coupled with the failure of the drawer to make the payment within 15 days of the date of service/receipt of notice. A complaint for the alleged commission of offence under Section 138 of the Act is, therefore, required to be filed within one month from the date of the cause of action which starts from expiry of 15 days from the date of service of notice to the drawer. From the scheme of Chapter XVII of the Act, it transpires that the Legislature had not contemplated more than one cause of action on the same cheque. Though successive presentations of the cheque are permissible under law yet successive notices for the purposes of determining the cause of action are not conceived. Legislature cannot be imputed to have intended to subject a transfer of a negotiable instrument to repeated prosecutions and convictions on the strength of one document'.
From the above it could be seen that the Division Bench has held that once limitation is set in motion by issue of notice of demand and the drawer's failure to meet that demand within the time set, it cannot stop for any reason, and if the complaint is not lodged before limitation runs out, no complaint can be lodged thereafter.
13. For all the reasons stated in the above paragraphs, I respectfully disagree with the view taken by the learned Single Judge of the Orissa High Court in Janardhan Mohapatra's case, supra and also the opinion expressed by the learned authors Rajesh Guptha and Gunjan Guptha in their text 'Dishonour of Cheques (Law and Practice)', which is based upon Janardhan Mohapatra's case, supra. Moreover, the above view has been formed by the Orissa High Court without referring to the judgment, of the Hon'ble Supreme Court in Hukumdev's case, supra.
14. After considering the entire materials on record, I am of the view that the Trial Court at the threshold had no jurisdiction to take cognizance of the offence after the expiry of the period prescribed under Section 142 of the Act. When the jurisdiction of the Court is barred for taking cognizance, the question of condonation of delay in filing the complaint so as to enable the Court to take cognizance of the offence does not arise in view of the special nature of the enactment. In that view of the matter, this is not a case where this Court should interfere with the impugned order passed by the Trial Court dismissing the complaint, though on a different ground. Criminal appeal is dismissed.