S. Talapatra DECISION
S. Talapatra, J.
1. By means of this petition filed under Section 397/401 read with Section 482 of Cr.P.C., the order dated 21.12.2018 taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, NI Act) read with Section 420 IPC, has been challenged on the solitary ground that cognizance was taken in contravention of the provisions of Section 142 and Section 138(c) of the NI Act. According to the petitioner, the cognizance as taken by the impugned order dated 21.12.2018 is beyond the period of limitation, as prescribed by Section 142(b) of the NI Act.
2. But another question which appears to be ancillary but pertinent in this case is whether taking cognizance of an offence for dishonour of cheque for insufficiency of fund punishable under Section 138 of the NI Act, with the offence of cheating punishable under Section 420 IPC can be maintained inasmuch as Section 5 of the Cr.P.C. provides that nothing contained in the Code (Cr.P.C.) shall, in absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. There cannot be any amount of doubt that for inquiring the offence punishable under Section 138 of the NIC Act, a special provision in respect of limitation has been carved out and that is quite distinguishable from the procedural prescription as laid down in the Cr.P.C.
3. Even though Section 4(2) of the Cr.P.C. provides that all offences under any other law shall be investigated, inquired into, tried, otherwise not dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner of investigating, inquiring into, trying or dealing with such offences. The provisions of Section 138 and other procedural provisions make the inquiry quite different and distinguishable from the procedure as prescribed under the Cr.P.C. It lays down a special procedure but, expressly, does not exclude the procedure under the Cr.P.C.
4. In Bhim Sen Vs. State of U.P., reported in MANU/SC/0136/1955 : AIR 1955 SC 435 the apex court had occasion to hold that the enactment must be clear and limitation of the jurisdiction must be confined to a particular field. In AR Antulay Vs. Ramdas reported in MANU/SC/0082/1984 : (1984) 2 SCC 500, the apex court had occasion to hold that the Cr.P.C. is the parent statute which provides for investigation, inquiring into and trial of cases unless there is a special provision in any other statute by laying down distinct provisions, the code cannot be displaced.
5. In Gangula Ashok and Anr. vs. State of A.P., reported in MANU/SC/0047/2000 : (2000) 2 SCC 504 the apex court again stated that if there is no such contrary provision in any other law, the provision of the Code would apply to the matter covered thereby.
6. In this regard, this Court is of the view that both in Section 138 and Section 142 of the NI Act, a special provision, distinct from the provisions of the Cr.P.C. in respect of limitation in taking cognizance has been made. It is apparent that the special statute rolls out distinctly different procedure.
7. It is equally well settled that if the special statute provides a different procedure, the provisions of the Cr.P.C. would not apply to the extent of inconsistency.
8. Having regard to Section 138 and Section 142 of the NI Act, if the cognizance of dishonor of cheque for insufficiency of fund is taken in absence of element of 'cheating', the cognizance has to be taken under Section 142(b) of the NI Act.
9. In the complaint filed by the respondent No. 2 in the Court of the Chief Judicial Magistrate, Khowai, Tripura being Case No. NI 20 of 2012, there has been allegation of breach of trust but there is no allegation of pre-meditative culpable mind to defraud the complainant, the respondent No. 2 herein. Unmindful of required materials, the cognizance under Section 420 IPC has been taken. There is no hesitation to hold that cognizance under Section 420 IPC is bereft of materials. Even if the allegations are believed as a whole, no ingredients of the offence punishable under Section 420 IPC are available.
10. The petitioner herein did not question the cognizance of offence punishable under Section 420 IPC separately, but the petitioner has challenged the cognizance as a whole, taken by the order dated 21.12.2018 for the offence punishable under Section 138 of the NI Act and the offence punishable under Section 420 of IPC. The solitary ground that has been projected is that such cognizance was barred by limitation and hence, unsustainable in law. The ground of limitation is against the cognizance under Section 138 of the NI Act.
11. For purpose of appreciating the submissions made by Mr. R Rahman, learned counsel appearing for the petitioner, it would be appropriate to refer to the provisions of Section 142 of the NI Act which provides that notwithstanding anything contained in the Cr.P.C. (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 of the cheque in due course; (b) such complaint is made within one month of the date on which the cause of action arises under clause 1(c) of the proviso to Section 138 [provided that cognizance of an offence may be taken by the court after the prescribed period if the complainant satisfies the court that he had sufficient cause for not making a complaint within the said period].
12. From scrutiny of the records and the complaint, the NI 20 of 2018 pending before the Court of the Chief Judicial Magistrate, Khowai, Tripura it transpires that the cheque in question amounting to Rs. 4,00,000/- of Bandhan Bank, Debagram Branch bearing No. 000020 dated 18.07.2018 was issued in favour of the complainant, Pradip Sarkar, the respondent No. 2, represented by Mr. S. Sarkar, learned counsel. The cheque was deposited for encashment in the United Bank of India, Maharanipur Branch on 14.08.2018 but according to the petitioner, the Branch Manager returned the cheque with endorsement that the cheque was dishonoured on 26.09.2018. The complainant issued a notice demanding payment of the amount of the cheque on 12.10.2018 by registered post with A/D to be delivered to the residential address of the petitioner herein.
13. It has appeared that the notice was received on 27.10.2018 by the petitioner. This particular fact has not been reflected in the complaint but it has been stated that on 22.11.2018 the petitioner herein, being the accused, informed the complainant that he would pay the amount within two days but he did not make payment of the said amount. According to the complainant, non-payment of the amount as reflected in the cheque which has been dishonoured for insufficiency of fund within 15 days next to the receipt of the notice and the assurance of the complainant that he would make the payment within two days appeared to him as nothing but a ploy to prevent the complainant in approaching the court for redressal.
14. The petitioner has made a specific allegation that the offence of dishonour of cheque is a statutory violation and such offence cannot be clubbed together with the offence punishable under Section 420 IPC on the same materials. There is no material, as stated earlier, for taking cognizance under Section 420 IPC. Section 142 of the NI Act has provided that the cognizance of the complaint cannot be taken if the complaint is not filed within one month from the date on which the cause of action arises under clause (c) of the proviso of Section 138 of the NI Act.
15. Proviso (c) to Section 138 of the NI Act provides that a drawer of such cheque, if fails to make the payment on 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 said notice, the cognizance can be taken under Section 138 in terms of Section 142 of the NI Act.
16. Mr. Rahman, learned counsel appearing for the petitioner has submitted that the notice of demand was received on 27.10.2018 for payment of the amount as reflected in the cheque due to be paid on or before 11.11.2018, but such payment was not made according to the complainant.
17. The limitation in terms of Section 142 of the NI Act for instituting the complaint had expired on 10.12.2018. The complaint has been filed on 21.12.2018 without seeking leave of the court for extension of time for instituting the complaint as provided below Section 142(1)(b) which provides that such complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act.
18. In the case in hand, the cause arose on 11.11.2018 when 15 days from the date of receiving the notice demanding payment of the cheque amount had expired. Thus, the cause of action in terms of Section 142(1)(b) of the NI Act arose on 11.11.2018 on expiry of 15 days in making payment in terms of the notice of demand.
19. The proviso below Section 142(1)(b) of the NI Act has further laid down that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfied the court that he had sufficient cause for not making the complaint within such period. There is no dispute that there was no attempt or application filed from the complainant seeking the court's leave or to satisfy the court that the complainant was prevented by sufficient cause for not making complaint within the said period. The court does not have any power to condone the said period unless the complainant satisfied the court in respect of his disability in filing the complaint within the period, as prescribed by law, as this Court has clearly observed that the complainant while urging the trial court to take cognizance of offence punishable under Section 420 IPC, this was a latent design to have automatic extension. But the court below has committed apparent error by taking cognizance of the offence punishable under Section 138 of the NI Act.
20. As this Court, having considered the materials, has observed that there is no material of Section 420 IPC, at least from the complaint no such material is coming to the fore, and as such, the cognizance under Section 420 IPC was wholly unwarranted. As a result, that part of the order is set aside in exercise of the inherent power as provided under Section 482 Cr.P.C.
21. Since it has been quite categorically observed that no attempt or application was submitted for satisfying the court how the complainant was prevented from not approaching the court in time, the complaint was wholly time barred.
22. Accordingly, the order dated 21.12.2018 taking cognizance is set aside but considering the mistake in understanding the law, this Court would remand the complaint to the court of the Chief Judicial Magistrate, Khowai by providing the petitioner an opportunity to file an application explaining the reasons for not approaching the court in time so that there can be due consideration under proviso to Section 142(1)(b) of the NI Act, Such application shall be filed within 15 (fifteen) days from today. If within 15 days as stipulated by this court, the application bringing on record the reasons for delay for satisfying the court is filed, then the court of the Chief Judicial Magistrate, Khowai shall issue notice upon the accused person affording opportunity to file objection, if any, and thereafter on considering the cause, as might be assigned by the complainant, the court of the Chief Judicial Magistrate, Khowai shall take a decision whether the causes are satisfactory or not. If the causes are found satisfactory, the time for taking cognizance may be extended, else the complaint shall be rejected being barred under Section 142(1)(b) of the NI Act. If no such application is filed within the stipulated time, the court of the Chief Judicial Magistrate, Khowai shall slay the complaint without further consideration.
23. In terms of the above, this revision petition is allowed.
Send down the LCRs.
A copy of the order be furnished to the learned counsel for the parties free of cost.
© Manupatra Information Solutions Pvt. Ltd.