IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR CRIMINAL PETITION NO.324/2019 BETWEEN:
MRS. HABEEBUNNISA D/O LATE MOHAMMED HANEEF AGED ABOUT 47 YEARS, ASSISTANT TEACHER PRESENTLY RESIDENT OF LAKSHMI NAGAR GURAMITAL -585 214 YADGIR -DISTRICT (BY SRI MUJTABA H., ADVOCATE) AND:
MR. NISAR AHMED SHA SON OF LATE WALI AHMED PASHA AGED ABOUT 65 YEARS, RESIDING AT NO.51 II CROSS, III MAIN STREET MOHAN KUMAR NAGAR YESHWANTHPUR BENGALURU - 560 022 …PETITIONER ...RESPONDENT (BY SRI R MOHAMMED RIYAZULLA, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE ORDER DATED 13.12.2018 PASSED BY THE LEARNED LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-61) IN CRL.RP.NO.297/2017 BY WHICH THE LEARNED SESSIONS JUDGE DISMISSED THE REVISION PETITION; CONSEQUENTLY, QUASH THE ORDER DATED 03.03.2017, PASSED BY THE LEARNED XVIII A.C.M.M., BENGALURU IN C.C.NO.35366/2011, BY WHICH THE LEARNED MAGISTRATE PERMITTED THE COMPLAINANT, TO FILE A FRESH COMPLAINT WITHIN A PERIOD OF ONE MONTH ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is accused in proceedings initiated by respondent under Section 138 of Negotiable Instruments Act (for short ‘N.I. Act’), pursuant to dishonour of cheque issued by her.
2. At the time when the case was set down for arguments, it was brought to the notice of the learned Magistrate that the complaint was prematurely filed before expiry of fifteen days after issuance of notice under Section 138(b) of the N.I. Act. The notice period expired on 24.08.2011, whereas, complaint was filed on 16.08.2011. Having taken note of decision of the Hon’ble Supreme Court in the case of Yogendra Pratap Singh Vs. Savitri Pandey reported in 2014 (10) SCC 713, the learned Magistrate has held that the complaint was premature and not maintainable. However, he has permitted the complainant to file fresh complaint within one month from the date of his order dated 03.03.2017. Petitioner unsuccessfully challenged learned Magistrate’s order in Crl.R.P.No.297/2017 before the LX Additional City Civil and Sessions Judge, Bengaluru, which has been dismissed by order dated 13.12.2018, confirming the order passed by the learned Magistrate. Feeling aggrieved, the accused is before this Court.
3. Sri Mujtaba H., learned advocate for the petitioner urged a solitary contention that as per the judgment of the Apex Court, the benefit of the judgment is available to only those complainants who did not proceed further in view of the answer to question (i) raised in the case of Yogendra Pratap Singh. He argued that in the instant case, learned Magistrate has held that the complaint is not maintainable. The complainant did not choose to proceed further in the case. Therefore, the liberty granted by the learned Magistrate to the complainant to file fresh complaint is unsustainable in law.
4. Sri R. Mohammed Riyazulla, learned counsel for respondent – complainant argued in support of the order passed by the learned Magistrate.
5. I have carefully considered rival contentions and perused the records.
6. In the case of Yogendra Pratap Singh, the Hon’ble Supreme Court at Paragraphs No.1.1 and 1.2 has held as follows:
“In the order of 03.04.2012, a two-Judge Bench of this Court granted leave in SLP (Cri.) No.5761 of 2010. The Court formulated the following two questions for consideration:
1.1 (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? and, 1.2.(ii) If answer to Question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?”
The same has been answered at paragraph Nos.39 to 41 as follows :
“39. Our answer to Question (i) is, therefore, in the negative.
40. The other question is that if the answer to Question (i) is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired.
41. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the court after the prescribed period. Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly.”
(Emphasis supplied) The Supreme Court of India has held that the directions contained in paragraph No.41 shall be deemed to be applicable to all such pending cases where the complainant does not proceed further in view of the answer to question No.(i).
7. The arguments of the learned advocate for the petitioner is that the complainant did not choose to proceed further as has been held by the Apex Court. It is not in dispute that the judgment of the Apex Court was brought to the notice of the learned Magistrate when the trial was complete and the case was set down for hearing the arguments. After hearing the arguments, the learned trial Judge has passed the impugned order. At the stage of arguments, there is nothing more the complainant can do except arguing the matter. After hearing the parties, the impugned order has come into existence. Therefore, the solitary contention urged by the learned advocate for the petitioner that the complainant did not proceed further is untenable.
8. Resultantly, the petition fails and it is accordingly dismissed.
In view of disposal of the petition, I.A.No.1/2019 does not survive for consideration and the same is disposed of.
No costs.
Sd/- JUDGE nvj