ORDER
A.S. Godara, J.
1. All these petitions involve common questions of law and facts and besides the litigating parties are same, therefore, as per the convenience the same are proposed to be decided by this common order.
2. In S. B. Criminal Misc. Petition No. 322/ 97, the accused-petitioner issued a cheque in favour of complainant-non-petitioner for a sum of Rs. 7,000/- on 5-2-92 and, on presentation for encashment and clearance in his own account by the non-petitioner, the same was on account of insufficiency of fund in the account of the drawer-accused, dishonored and returned as such.
3. As regards S.B. Criminal Misc. Petition No. 323/97, succinctly stated, the facts giving rise to the present petition arc that the complainant, presently, non-petitioner No. 2 in this petition, filed a criminal complaint under Section 38 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') in the Court of Addl. Chief Judl. Magistrate, Sriganganagar alleging therein that the accused-petitioner, in discharge of debts owed to him, issued a cheque on the Vijaya Bank, Sriganganagar for a sum of Rs. 5783.35 in favour of the complainant. However, on presentation to the Bank for encashment, the same was returned by the Bank with a report that the funds in the credit of account of the drawer-petitioner were insufficient.
4. In S.B. Criminal Misc. Petition No. 333/97, the accused-petitioner similarly issued a cheque in the sum of Rs. 9,000/- on 31 -12-91 in favour of the complainant-non-petitioner in discharge of debts but the same was also dishonored on the ground of insufficiency of the funds in the credit of the drawer (petitioner).
5. The complainant, under Section 38(b) of the Negotiable Instruments Act, made a demand for payment of the said amounts of money by giving notices in writing, to the drawer of the cheques (petitioner), within 15 days of the receipt of information by him from the Bank regarding the return of the cheques as unpaid. Besides, in compliance of Clause (c) of Section 138 of the Act, since the drawer after receipt of notice served on him, failed to make the payment of the said amount of money to the payee-complainant and hence, in all the three cases, complaints under Section 38 of the Act were filed on 28-7-92 in the said Magisterial Court.
6. The learned Magistrate in all the three cases, after completing all the proceedings under Chapter XV of the Criminal Procedure Code, vide his order dated 14-7-93, holding that there are grounds for holding that the accused-petitioner is liable to be tried for offence under Section 38 of the Act, ordered for issuance of process against him.
7. The petitioner, appeared in all the three cases before the trial Magistrate on 1-10-1993 when he was ordered to be released on bail. It was on 4-12-1996 that he filed three separate applications in all the three cases thereby requesting that since the aforesaid cheques which are subject matters of the criminal cases pending trial were, admittedly, issued on 5-2-92, 3-1-92 and 31-12-91 respectively whereas notices of the dishonoured disputed cheques were issued resultanting, as late as on 28-7-92, in lodging criminal complaints before the trial Court which, ultimately, culminated into taking cognizance of the aforesaid offence as late as on 14-7-93 and has lastly, it was alleged, though quite wrongly and contrary to the provisions of Section 138 of the Act, that there was provision for only six months' imprisonment provided for the offence punishable hereunder and, consequently, it was prayed that in view of the provisions of Section 468(2)(b) Cr. P.C. by which the trial Court was barred from taking cognizance of offences categorized in Sub-section. (2) of the said section and hence the impugned order dated 14-7-1993 was liable to be set aside. Besides, in addition thereto, on the basis of the decision of the apex Court rendered in Common Cause v. Union of India, 1996 Cr LR (SC) 430 : 1996 Cri LJ 2380, also all these cases were liable to be dropped.
8. However, the learned trial Magistrate in his order dated 27-2-97 passed in all the three applications separately, did not sustain the validity of the objections so raised holding that the aforesaid decision of the Apex Court rendered in Common Cause v. Union of India (supra) clearly made an exception in regard to applicability of the observations and ratio laid therein whereby offence punishable under Section 38 of the Act was also excluded there from. The learned counsel for the petitioner, very rightly so, did not press this objection at the time of hearing of these petitions.
9. However, being aggrieved by the aforesaid orders dated 27-2-97 these petitions have been filed mainly on the ground that the impugned orders of taking cognizance, dated 14-7-93, were clearly barred by the provisions of Section 468(2)(b) of the Criminal Procedure Code and hence the proceedings initiated and consequently thereto all the impugned orders dated 14-7-93, were without jurisdiction and contrary to the provisions of law and are as such liable to be quashed.
10. I have heard the learned counsel for the parties as well as the learned P.P. and have also considered the legality and propriety of the impugned orders under challenge.
11. The only crucial point for adjudication is whether the impugned orders dated 14-7-93 whereby the learned trial Court took cognizance of the offence under Section 38 of the Act are hit by the provisions of Section 468(2)(b) of the Criminal Procedure Code and hence are liable to be quashed.
12. Before proceeding further to dispose of these petitions, the relevant provisions of law applicable to the case in hand may be noted. Sections 138 and 142 of the Negotiable Instruments Act read as under :-
138. Dis honor 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, of 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 provision 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.
Explanation.- For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.
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.
Section 468, Cr. P.C. reads as under :-
468. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section. (2) after the expiry of the period of limitation,,
(2) The period of limitation shall be -
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
13. At the outset, it may be observed that Section 142 of the Negotiable Instruments Act, as quoted above, clearly, inter alia, provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) no Court shall take cognizance of any offence punishable under Section 38 unless 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. Therefore, there is a special period of limitation in regard to taking cognizance of an offence punishable under Section38 of the Act as provided in Clause (b) of Section 142 of the Act and there being a special period of limitation provided, the general provision of Section 468, Cr. P.C., did not apply to the cases in hand.
14. However, as the impugned orders and so also the applications so moved on 4-12-96 reveal, the petitioner also did not raise this objection in regard to inapplicability of the provisions of Section 468, Cr. P.C. and, instead, applicability of Section 142(c) of the Act and, therefore, there was no occasion for the trial Court to have applied mind as to whether, in the cases in hand, the general provisions as provided under Chapter XXXVI of the Criminal Procedure Code were applicable or that the provisions of Section 142(b) of the Negotiable Instruments Act were only applicable. Therefore, the question as to whether taking of cognizance of the offence under Section 38 of the Act, was barred by such provisions as are contained in Clause (b) of Section 142 of the Act or not and this point, in absence of complete material before this Court, is left open for consideration of the trial Court. However, as regards the applicability of the aforesaid general provisions of Chapter XXXVI of the Criminal Procedure Code in regard to the limitation for taking cognizance of certain offences provided therein admittedly, in all the three cases, the criminal complaints were filed on 28-7-92 and, consequently, upon enquiry under Chapter XV of the Criminal Procedure Code, orders of cognizance in all the three cases were passed on 14-7-1993.
15. The learned counsel for the petitioner relied on the decision rendered in State of Maharashtra v. Sharadchandra Vinayak Dongre AIR 1995 SC 231 in which it was held that since the trial Magistrate before proceeding to condone the delay in taking cognizance of offence against the accused on the basis of police report, failed to give prior notice for condo nation of delay to the accused and without affording any opportunity to have their say against the order of taking cognizance and hence, the case was ordered to be remitted to the Chief Judl. Magistrate for deciding the application filed by the prosecution seeking condo nation of delay, if any, afresh in accordance with law after hearing both the parties and so contended that the learned Magistrate before proceeding to take cognizance as late as on 28-7-92/1-8-92 prior to condoning of the delay and taking aid of provisions of Section 473, Cr. P.C, proceeded in absence of the petitioner depriving him of the opportunity of opposing the applications for condo nation and, accordingly, the learned Magistrate committed an illegality and impropriety while rejecting the objection of the petitioner and hence the impugned orders dated 27-2-97 were liable to be set aside.
16. However, as regards taking cognizance of an offence, the learned counsel for non-petitioner No. 2 has relied on the decisions of this Court rendered in Pancha Ram v. Sohanlal 1996 (3) RLW 711 and Maluka Ram v. State of Rajasthan 1997 (1) RLW 72 wherein while discussing the scope of provisions of Section 190, 200, 202, 203 and 204 as well as Sub section 468 and 472, Cr. P.C, it has been clearly observed that so far as a criminal complaint case is concerned, Sub section 200 and 202 of the Criminal Procedure Code contemplate an enquiry. Section 200, Cr. P.C. provides that a Magistrate taking cognizance of an offence should examine the complainant without delay and after the examination of the complainant he may either issue process without postponing the enquiry initiated by him or, if he considers it necessary, he may postpone the enquiry under Section 202 and thereafter examine witnesses which may be produced by the complainant. Section 200, Cr. P.C. clearly states that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses and Clause (a) of Sub-section (1) of Section 190, Cr. P.C., inter alia, provides that subject to the provisions of this Chapter (XIV), any magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section. (2), may take cognizance of any offence upon receiving a complaint of facts which, constitute such offence.
17. As soon as the complaints in all the three cases were filed on 28-7-92 by the complainant-non-petitioner, the learned Addl. Chief Judl. Magistrate presently seized of all the cases, on application of mind to the facts and allegations of the complaints held the view that offences as alleged therein appears to have been committed necessitating enquiry under the provisions of Chapter XV of the Criminal Procedure Code and hence he proceeded to hold enquiry under the provisions of Sub section 200 and 202, Cr. P.C. culminating into the impugned orders of taking further cognizance qua the petitioner on 14-7-93 as, in his opinion, there was sufficient ground for proceeding against the accused-petitioner and hence consequential order of issuing process against the accused under Clause (a) of Sub-section (1) of Section. 204 of the Code was passed.
18. Sub-section. (I) of Section 204 unambiguously provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be either summons case or warrant case, he shall proceed to issue summons or warrant as provided hereunder.
19. In view of these provisions, the initial stage at which the learned Magistrate is required to apply his mind to the allegations of the complaint arises as and when an opportunity as such arises keeping in view the aforesaid provisions of Section 190(1)(a) of the Criminal Procedure Code and after taking cognizance of offence or offences by the Magistrate so competent, the same enables the Magistrate to embark on an enquiry under the provisions of Chapter XV of the Criminal Procedure Code and not otherwise.
20. Resultantly, as there is no allegation nor it is so contended by the learned counsel for the petitioner that the learned trial Magistrate, as observed above, in fact, did not take cognizance of offences as borne out from the facts alleged in the complaint on 14-7-93, at the first instance but it was on 28-7-92/1-8-92 when the complaints were filed before the learned Magistrate and while proceeding in exercise of powers vesting under Section 90(1)(a) of the Criminal Procedure Code, forming an opinion that there appears the ground of enquiring into the allegations and facts of the complaints by proceeding under the provisions of Chapter XV of Criminal Procedure Code and, therefore, it was at the stage of presentment and on 1-8-92 application of the judicial mind by the learned trial Magistrate in regard to the facts and allegations of the complaints who decided to enquire into the allegations of the complaint, as above, and not subsequent thereto, as contended by the learned counsel for the petitioner.
21. Besides, though in the application so moved by the petitioner before the trial Court, it was alleged that the offence under Section 138 of the Act, providing only sentence of imprisonment ex-i tending up to six months whereas, in fact, it carries a punishment with imprisonment to a term which may extend to one year, or with line which may extend to twice the amount of the cheque, or with both and, therefore, even if for the sake of arguments, the provisions of Section. 468(2)(b) of Criminal Procedure Code are applied, the cognizance of the said offence would be deemed to have taken place on 28-7-92/1-8-92 when the criminal complaints were entertained by the learned Magistrate and not on 14-7-1993 and as such, all these complaints having been filed, in case the provisions of Section 142(b) of the Act are excluded from consideration, cannot be held to be barred by limitation as provided under the provisions of Chapter XXXVI of the Criminal Procedure Code.
22. As regards the contention of the learned counsel for the petitioner that the complaints and the aforesaid offences in criminal complaints lodged by the non-petitioner-complainant can be barred by the aforesaid provisions of Chapter XXXVI of the Criminal Procedure Code, does not hold any water and, therefore, there did not arise any occasion for the learned trial Magistrate to have, in exercise of powers vesting under Section 473, Cr. P.C, to have suo motu condoned the delay in taking cognizance of the aforesaid offences.
23. However, the question whether in ail these criminal cases, the general provisions of Chapter XXXVI of the Criminal Procedure Code were applicable or the special provisions of Section, 142 (b) of the said Act were applicable, as observed hereinbefore, this question having not been agitated before the learned trial Magistrate, is kept open for consideration by the learned trial Magistrate in case the same is agitated afresh. However, as regards the application of provisions of Chapter XXXVI of the Criminal Procedure Code, as already observed above, the bar of limitation did not come into play against taking cognizance of the aforesaid offences by the learned trial Magistrate in exercise of powers vesting under Section 190(1)(a) read with Section 200, Cr. P.C. in taking cognizance qua the accused-petitioner of offence under Section 204, Cr. P.C. summoning the accused-petitioner to stand trial for the alleged commission of the aforesaid offences.
24. On the basis of the aforesaid discussion, all these petitions are liable to be dismissed.
25. Consequently, all these petitions along with their connected stay petitions are hereby dismissed in the aforesaid terms. The parties are hereby directed to appear before the trial Court on 10-3-99 warranting no further notice from the Court.