Judgment:
ORDER
T. Ranga Rao, J.
1. This petition is filed under Section 482, Cr.P.C. requesting to quash the proceedings in C. C. No. 451/1995 on the file of the XV Metropolitan Magistrate, Hyderabad.
2. The facts in giving rise to the filing of this petition are, briefly, as follows:-
The first respondent, M/s. Petro Lubes filed a private complaint against the petitioner under Section 138 r/w Section 142 of the Negotiable Instruments Act alleging that the company was doing business in oil and the petitioner purchased oil worth Rs. 14,000/- on credit on 19-12-1994, and issued a cheque for Rs. 14,000/- dated 11-2-1995 drawn on A.P. State Co-operative Bank Ltd., Lothugunta Branch, Secunderabad. It is further alleged that the petitioner addressed a letter dated 23-2-1995 requesting not to present the cheque and assured to pay the said amount on or before 10-4-1995 and failed to pay the same within the said period. The cheque was subsequently presented at State Bank of Hyderabad, Adarshnagar Branch and the same was dishonoured by Memo dated 28-6-1995 as 'funds insufficient'. The first respondent issued legal notice dated 6-7-1995 demanding for payment of the said amount and the same was received by the petitioner on 12-7-1995 and failed to pay the amount. Hence, the complaint was filed on 30-8-1995.
3. It appears that the petitioner filed a petition seeking condonation of delay of three days in filing the complaint stating that he could not file complaint within one month due to sickness and the learned Magistrate condoned the delay under Section 5 of the Limitation Act and took cognizance of the offence and numbered the case as C.C. No. 451/95.
4. Now the petitioner filed this petition requesting to quash the said proceedings in C.C. No. 451/95.
5. The learned counsel for the petitioner mainly contended that there is no provision in Negotiable Instruments Act or any other Enactment to invoke Section 5 of the Limitation Act to condone the delay in filing the complaint under Section 138 read with Section 142 of the Negotiable Instruments Act and the learned Magistrate has no jurisdiction to condone the delay and take cognizance of the offence and he relied on a decision Kunhimuh Ammed v. Khadeeja, (1995) 2 Andh LT (Cri) 420 (Kerala).
6. But the learned counsel for the respondent submitted that the delay in filing the complaint under Section 138 r/w Section 142 of the Negotiable Instruments Act can be condoned under Section 5 of the Limitation Act, and he relied on a decision Janardhan Mohapatra v. Saroj Kumar Choudhury, 1993 Cri LJ 1751 (Orissa). He further relied on a decision Mukri Gopalan v. Cheppilat Puthanpurayid Abbobacker, : AIR1995SC2272 .
7. It is not in dispute that the respondent has not filed the complaint within one month from the date of cause of action accrued, as provided under Section 142(c) of the Negotiable Instruments Act. It appears that he filed the petition to condone the delay of three days under Section 5 of the Limitation Act in filing the complaint and the learned Magistrate condoned the delay and took the case on file.
8. Now the question that arises for consideration is whether the complainant can invoke Section 5 of the Limitation Act in seeking condonation of delay in filing the complaint under Section 138 r/w 142 of Negotiable Instruments Act?
9. It is useful to extract Section 138 and Section 142 of the Negotiable Instruments Act to appreciate the rival contentions of both the parties:-
'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 the discharge, in whole, or in part, or any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount 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 extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:-
Provided that nothing contained in this section shall 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 drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
c) 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.
Section 142 of the Negotiable Instruments Act:-
'... Notwithstanding anything contained in the Code of Criminal Procedure;
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 First Class shall try any offence punishable under Section 138 ....'
A Combined reading of Sections 138(c) and 142(b) of the Act clearly shows that the complaint is to be filed within one month from the date of cause of action accrues. Therefore, in view of the opening words of Section 142 of the Act, 'notwithstanding anything contained in the Code of Criminal Procedure', the non absenti clause, provisions in Chapter XXXIV, and more so Section 473, Cr. P. Code would not apply to the complaint under the Act.
10. The learned counsel for the respondent submitted that by virtue of Section 29(2) of the Limitation Act Section 5 is applicable and hence, the learned Magistrate has rightly exercised the powers under Section 5 of the Limitation Act and condoned the delay. Section 29(2) of the Limitation Act reads as follows:-
'... 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 - 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special law or local law ...'
The provisions of Sections 138 and 142 of the Negotiable Instruments Act is a Special Law and specifically provides limitation of one month for taking cognizance of the offence under Section 142(b). It appears from Section 29(2) of the Limitation Act that there any special law or local law prescribes for any suit, appeal or application the period of limitation different from the period prescribed by the schedule, Section 3 applies, as if such period is the period prescribed by the schedule and also Sections 4 - 24 shall apply for the purpose of determining any period of limitation for any suit or appeal or application by any special law or local law, if they are not expressly excluded by any special or local law. Sections of the Limitation Act reads as follows :--
'... 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 ...'
Thus it is clear that Section 5 is applicable to any appeal or applications other than the applications under Order 21 of the Code of Civil Procedure.
11. The next question that arises for consideration is whether the complaint filed as envisaged under Section 2(d), Cr.P.C. amounts or equivalent to an application or petition in respect of which Section 5 of the Limitation Act can be invoked?
12. The complaint is defined under Section 2(d) of the Code of Criminal Procedure as follows:--
'... 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...'
Application is not defined in the Code of Criminal Procedure, but there are several provisions in Criminal Procedure Code which deal with applications i.e. Sections 96, 167(b), 244(2), 254(2), etc. Thus the entire Criminal Procedure Code draws distinction between application and a complaint. Complaint is also distinguished from the report of the Police Officer filed under Section 173, Cr. P. Code. Thus the meaning and import of the complaint is totally different from the meaning of the word 'petition or application'. Therefore, on consideration of the relevant provisions I am inclined to hold that the complaint as defined under Section 2(d), Cr. P. Code cannot be equated or equivalent to the words 'application or petition'. Therefore, the condonation of delay in filing complaint under Section 138(c) read with Section 142 of the Negotiable Instruments Act is illegal and without jurisdiction. It is also significant to note the language used in Section 142 of the Negotiable Instruments Act, 'no Court shall take cognizance of the offence punishable under Section 138 unless such complaint is made within one month from the date on which the cause of action arises', clearly indicates the intention of Legislature that the complaint should be filed within one month from the date of cause of action arises. Thus the Magistrate has no jurisdiction to entertain the complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, if it is filed beyond one month from the date of cause of action had arisen. My conclusion gains support from the decision in Kunhimuhammed's case (1995) 2 Andh LT (Cri) 420, wherein the Kerala High Court also took the same view. With great respect, I am unable to agree with the view expressed by the Orissa High Court that the word 'complaint' is equivalent to the word 'application' and hence, Section 5 of the Limitation Act can be invoked to condone the delay in filing the complaint under Section 5 of the Limitation Act can be invoked to condone the delay in filing the complaint under Section 138 r/ w Section 142 of the Negotiable Instruments Act.
13. The facts leading to the decision reported in Mukri Gopalan's case referred to above, are different to the facts of the case on hand and in that case, Their Lordships held that 'the Appellate Authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a Court and the period of limitation prescribed therein under Section 18, governing the appeal by the aggrieved parties would be computed keeping in view the provisions of Sections 4 - 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings.'
14. It should be remembered that Section 5 of the Limitation Act contemplates the condonation of delay in filing the appeals and applications if sufficient cause is shown for not filing the same within the prescribed period of limitation (emphasis is on the words 'appeals' and 'applications'). As already observed, the word 'complaint' contemplated under Section 2(d) of the Code of Criminal Procedure cannot be equated or equivalent to the word 'application' and hence, Section 5 of the Limitation Act cannot be invoked to condone the delay in filing the complaint. Hence, the said decision is not helpful to the respondent.
14. Therefore, in the light of the foregoing discussion, it emerges that the Magistrate has no jurisdiction to entertain the complaint filed beyond one month from the date of cause of action accrues under Section 138 read with Section 142 of the Negotiable Instruments Act. Admittedly, the complaint was filed in this case beyond one month and hence, the proceedings in C.C. No. 451/95 on the file of the XV Metropolitan Magistrate, Hyderabad, are liable to be quashed and accordingly quashed.
15. In the result, the petition is allowed and the proceedings in C.C. No. 451/95 on the file of the XV Metropolitan Magistrate, Hyderabad, are quashed.