L. Narasimha Reddy, J.
1. In this batch of Revisions, a common question of law arises. Hence, they are disposed of through a common judgment.
2. The petitioner is Agricultural Market Committee, Adoni, Kurnool District. It is empowered to levy market fee from the traders on purchases and sales of the agriculture produce within the notified area. The 1st respondent in each of the cases is a trader (hereinafter referred to as 'the respondents'). The respondents made the payment of market fee for particular periods through cheques. On presentation, the cheques were dishonoured with endorsements by the Banker that the amount covered by the cheques 'exceeds arrangements'.
3. Notices as required under the relevant provisions of the Negotiable Instruments Act,. 1881 (for short 'the NI Act') were issued. The respondents, in turn, issued replies requesting time for making arrangements. The petitioner did not take any further steps for quite some time. Ultimately, when the respondents did not keep up their promise in payment of the amount, the petitioner submitted complaints before the Court of Judicial Magistrate of First Class, Adoni, along with applications to condone the delay in presentation of the same. The Trial Court dismissed the complaints on the grounds that they were barred by limitation and Section 5 of the Limitation Act, 1963, does not apply to the proceedings under the NI Act.
4. The learned Counsel for the petitioner Mr. Badana Bhaskara Rao, submits that the NI Act does not exclude the application of the provisions of the Limitation Act to the proceedings under it and in view of Section 29(2) of the Limitation Act, Section 5 of the that Act applies to the proceedings under the NI Act. It is his case that the petitioner had offered proper explanation of delay in submission of the complaints and the delay ought to have been condoned, he has placed reliance upon the two judgments of the Orissa High Court in Janardhan Mohapatra v. Saroj Kumar, I (1994) BC 113=1993 Crl. L.J. 1751, and Satish Kumar Goenka v. S.R.K. Mohan, 2000(4) Crimes 253, in support of his contention. In fairness to the Court, the learned Counsel has also brought to the notice of this Court, the judgment of Shri Vishnu Spinners v. Sri Bhagyalakshmi Commercial Corporation, I (1999) BC 516= 1999 Crl. L. J. 1221, wherein it was held that Section 5 of the Limitation Act does not apply to the proceedings under the NI Act.
5. The learned Public Prosecutor submits that the NI Act is a special enactment, which inter alia prescribes a limitation for the proceedings to be initialed under it and, as such, the provisions of the Limitation Act, particularly, Section 5, do not apply to the proceedings under the same.
6. The facts are not in controversy. The respondents issued cheques to the petitioner towards payment of market fee. The same were dishonoured, when presented to the respective Banks on account of lack of sufficient funds. The petitioner issued notices to the respondents as required under Section 138(b) of the NI Act, calling upon the respondents to make payment. On receipt of the notices, the respondents have sought for time, ranging from 1 month to 3 months, for making payment. The petitioner did not move in the matter till the expiry of the time prayed for by the respondents, obviously hoping that they would make the payments. When the respondents ultimately did not adhere to their promises, the petitioner moved the present complaints before the Trial Court.
7. The manner of taking of cognizance of offence under Section 138 of the NI Act is provided for under Section 142 of the said Act. It 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 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.'
The Section begins with a non obstatite clause. Clause (c) stipulates category of Courts, which are competent to take cognizance of and try offences under Section 138 of the Act. Under Clause (a), such Court is prohibited from taking cognizance except upon a written complaint, made by the payee or holder in due course of the cheque. Clause (b) prescribes the time within which a complaint can be made. A close reading of the Section indicates that Clause (b) cannot be read independently nor can it be read in continuation of the non obstante clause of Clause (a). Little more car ought to have been taken while drafting the Section. A redeeming feature, however, is that notwithstanding the linguistic and grammatical deficiencies in it, the Section as a whole, convey its object and intention. The Section as a whole requires that the cognizance of the offence under Section 138 shall not be taken unless the complaint is made within one month from the date on which the cause of action has arisen. The circumstance referred to under Clause (c) of Section 138 is treated as constituting the cause of action. The same reads as under:
'138(c). The drawer of such cheque fails to make the payment of the said amount ofmoney 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 said notice.'
Therefore, the cause of action for presentation of a complaint for the offence under Section 138 can be said to have arisen on expiry of 15 days from the date of receipt of the notice issued by the complainant. A combined reading of Clause (b) of Section 142 and Clause (c) of Section 138 of the NI Act discloses that the time stipulated for submission of the complaint is 45 days from the date of receipt of notice by the accused/respondent. Admittedly, in all the cases, the complainants were submitted beyond 45 days from the date of receipt of the notices issued by the respondents. It was for this reason that the petitioner had invoked the provisions of Section 5 of the Limitation Act.
8. It is a matter of common knowledge that periods of limitation for presentation of submission of original, miscellaneous and appealable proceedings in various Courts, the procedure for reckoning the period of limitation and other matters connected thereto, the Limitation Act of 1908 held the field till it came to be replaced by the Limitation Act of 1963. The numbering and the subject-matter of the Sections, except for certain variations as to the contents, are similar in both the 1908 and 1963 Acts. Sections 4 - 24 (inclusive) dealt with the method of reckoning of period of limitation. Section 5 of both the enactments relates to the power of the Courts to condone the delay. There does not appear to be unanimity among various High Courts as to whether Section 5 of the Limitation Act applies to the original proceedings and also on the question as to which are the proceedings that can be equated to suits. That will be dealt with a little later.
9. An important and substantial difference in both the enactments is that under Section 29 of the 1908 Act, provisions of Sections 4 - 24 were made inapplicable to instances where the periods of limitation are prescribed by special or local enactments (hereinafter referred to as Special Laws). Unless there is a provision in such special laws making those Sections applicable to the proceedings under it. The 1963 Act has reversed this position. Sections 4 - 24 of the new Act are made applicable to proceedings even where the periods of limitations are provided for under special laws, except where they are expressly excluded by such enactments. In Manguram v. Municipal Corporation of Delhi, 1976 (1) SCC 393, this aspect has been made very clear.
10. The question as to when a special law can be said to have expressly excluded the application of Sections 4 - 24 of the Limitation Act fell for consideration before the Hon' ble Supreme Court in Union of India v. Popular Construction Company, : AIR2001SC4010 . It was held therein that even where the special law does not contain the provisions, expressly excluding the application of Sections 4 - 24 of the Limitation Act, it would still be open to the Court to examine as to the extent to which the Scheme of the Act, the nature of the subject matter and purport of the provisions of the special law would envisage such an exclusion.
11. One of the guiding factors adopted was that if the special law, in addition to prescribing the period of limitation, goes further and prohibits taking cognizance of the proceedings, beyond a particular period of limitation, it should be construed that the power to condone delay stands excluded and thereby Section 5 comes into picture. Considering Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Arbitration Act'), the Supreme Court held that since the Section prohibited the Courts from entertaining applications beyond the period of limitation stipulated under Section 34, Section 5 of the LimitationAct stood excluded for the proceedings under the Arbitration Act. Reference was also madeto the object underlying the Arbitration Act, one of which was of speedier disposal andensuring proper and effective remedies, in the matters of arbitration. The relevant observations are as under:
'7. There is no dispute that the 1996 Act is a 'special law' and that Section 34 provides for a period of limitation different from that prescribed under the Limitation Act. The question then is--is such exclusion expressed in Section 34 of the 1996 Act?....
8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion that would not have been sufficient to exclude Sections 4 - 24 of the Limitation Act because-
'Mere provision of a period of limitation in, howsoever, peremptory or imperative language is not sufficient to displace the applicability of Section 5. (Manguram v. Municipal Corporation of Delhi, 1976(1) SCC 393)'. 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would, therefore, bar the application of Section 5 of that Act. Parliament did not need not to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify Such a result.
14. Apart from the language, 'express exclusion' may follow from the scheme and object of the special of local law. 'Even in a case where the special law does not exclude the provisions of Sections 4 - 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and tp what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation in Hukum Narain Yadav v. Lalit Narain Mishra, : [1974]3SCR31 )'.'
12. If the case on hand are tested with the principle laid down by the Hon'ble Supreme Court in the above referred case, it emerges that Section 142 of the NI Act prohibits the Court from taking cognisance of an offence, except where it is made within one month from the date on which the cause of action arose. The words 'no Courts shall take cognizance of offence' and the non obstante clause galvanising the proceedings under the Act from any thing contained in the Code of Criminal Procedure, 1973 in that regard, assume significance. When the Section places a complete bar on taking cognizance of an offence, except where the complaint is made within one month from the date on which the cause of action arose, the power to condone delay under Section 5 of the Limitation Act stands excluded.
13. Apart from that, the insertion of Chapter XVII comprising of Sections 138 - 142, in the NI Act, was for a definite and avowed purpose. The cases relating to dishonour of cheques were to be dealt with in accordance with the special procedure. The object was to provide a speedier and effective remedy, relieving the proceedings of the traditional delays and procedural bottlenecks. Therefore, notwithstanding the language of Section 29(2) of the Limitation Act, 1963, the application of Section 5 of that Act stands excluded.
14. Even where the applicability of Section 5 of the Limitation Act is not excluded, it is settled principle that the same does not enable to Courts to enlarge the time for presentation of original proceedings, such as, suits, election petitions, etc., beyond the period of limitation! Section 5 applies to proceedings such as appeals, applications, that too, not being those under Order XXI, CPC.
15. The period of limitation bars the remedy of the plaintiff without affecting his right. If the remedy is denied, the right itself may become otiose. Conversely, on the expiry of period of limitation, a corresponding right accrues to the defendant. The various steps, such as, miscellaneous applications during the pendency of the original proceedings, or appeals and revisions arising out of the original proceedings stand on a different footing. While law insists that the party seeking to enforce its right should be diligent, it shows a semblance of indulgence for the steps subsequent thereto, That is why he suits filed even with 2 days of delay over and above the period of limitation are liable to be dismissed, whereas appeals and other proceedings, even several years after the period of limitation; are entertained, if satisfactory reasons are pleaded. A distinction is always maintained between the original initiation and the steps subsequent thereto.
16. A person can be said to have moved to enforce its right through the medium of Court when he presents the suit or petition, as the case may be, provided for under the relevant statute. An adjudication comes to be undertaken as regards the enforcement of right. While interlocutory applications are said to be ancillary to the provisional proceedings, the appeals are said to be extensions thereof. Therefore, appeals and interlocutory applications stand on a footing slightly different from the original proceedings, from the point of view of limitation. What becomes relevant in this context as regards original proceedings is to see whether the rights sought to be enforced is eclipsed on account of the lapse of time. In contrast, the relevance of limitation in appeals or applications is about the promptitude in taking the further steps, the original proceedings having already been initiated. The effect or impact of limitation on the original proceedings is definite and conclusive. If partakes substantive, as distinct from purely procedural characteristic. The same is not the case with appeals and applications. Omission of reference to suits in Section 5 is very significant in this regard.
17. In Janardhan Mohapatra v. Saroj Kumar Choudhury (supra) and Satish Kumar Goenka v. SRK Mohan (supra) the Orissa High Court took the view that Section 5 of the Limitation Act applies to the proceedings under Section 138 of that Act. In both the cases much turned around the view taken by the learned Judges on the question as to whether the complaint should be treated as an application referred to in Section 5 of the Limitation Act and also Sub-section (2) of Section 29 of the said Act.
18. I fail to agree with the learned Judges of the Orissa High Court for two reasons. Firstly, whatever be the nomenclature one may chose to give to the complaint alleging offence under Section 138, it has to be treated only as an original proceeding and not otherwise. Therefore, the question of condonation of delay in respect of original proceedings does not arise. Secondly the basis for reliance on Section 29(2) of the Limitation Act vis-avis the proceedings under the Limitation Act, disappears with the law laid down by the Hon'ble Supreme Court in Hukum Narain Yadav v. Lalitnarain Mishra, : [1974]3SCR31 , as explained and followed in Union of India v. Popular Construction Company case (supra).
19. In Sri Vishnu Spinners' case (supra), this Court took the view that Section 5 of the Limitation Act does not apply to original proceedings and that Section 473, Cr. P.C., doesnot save the situation in view of non obstante clause employed in Section 142 of the NI Act.
The Crl.R.Cs. are accordingly dismissed.