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Golam Mostafa Seekh Vs. The State of Tripura and Ors. - (High Court of Tripura) (07 Jul 2020)

If the special statute provides a different procedure, the provisions of the Cr. PC would not apply to the extent of inconsistency

MANU/TR/0238/2020

Criminal

By means of present petition filed under Section 397/401 read with Section 482 of Code of Criminal Procedure, 1973 (CrPC), the order taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) read with Section 420 of Indian Penal Code, 1860 (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 is beyond the period of limitation, as prescribed by Section 142(b) of the NI Act.

Both in Section 138 and Section 142 of the NI Act, a special provision, distinct from the provisions of the CrPC in respect of limitation in taking cognizance has been made. It is apparent that the special statute rolls out distinctly different procedure. It is equally well settled that, if the special statute provides a different procedure, the provisions of the CrPC would not apply to the extent of inconsistency. In view of 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.

In the complaint filed by the Respondent No. 2 in the Court of the Chief Judicial Magistrate, 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 of 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 of IPC are available.

The limitation in terms of Section 142 of the NI Act for instituting the complaint had expired on 10th December, 2018. The complaint has been filed on 21st December, 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. In the case in hand, the cause arose on 11th November, 2018 when 15 days from the date of receiving the notice demanding payment of the cheque amount had expired.

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. But the Court below has committed apparent error by taking cognizance of the offence punishable under Section 138 of the NI Act.

As this Court has observed that there is no material of Section 420 of IPC, at least from the complaint no such material is coming to the fore, and as such, the cognizance under Section 420 of 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 of CrPC. 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.

Accordingly, the order taking cognizance is set aside but considering the mistake in understanding the law, present Court would remand the complaint to the court of the Chief Judicial Magistrate, by providing the Respondents 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 days. Petition allowed.

Tags : DISHONOUR   CHEQUE   COGNIZANCE   LEGALITY  

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