IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2428 OF 2016 BETWEEN:
Shivaraju K.R., S/o. Late Rajanna, Aged about 30 years, No.128, 2nd Cross, Sugar Town, Mandya – 571 401. …Petitioner (By Sri. R.D. Renukaradya, Advocate) AND:
M.K. Chetangowda, S/o. B.M. Kadaiah, Aged about 40 years, R/at No.111, Flat No.404, S.B.M. Road, C.C. Residency, K.S.R.T.C. Layout, Uttarahalli, Bengaluru - 560 062. …Respondent This Criminal Petition is filed under Section 482 of Cr.P.C praying to set aside the order passed by the Principal Civil Judge (Jr. Dvn) and J.M.F.C at Mandya in PCR.No.145/2012 dated 31.10.2013 and restore the original complaint.
This Criminal Petition coming on for Admission this day, the Court passed the following:
O R D E R Heard the learned counsel for the petitioner.
2. This petition is filed under Section 482 of Cr.P.C. seeking to set aside the order passed by the learned Principal Civil Judge (Junior Division) & JMFC, Mandya, in PCR.No.145/2012 dated 31.10.2013.
3. The petitioner herein presented a complaint under Section 200 of Cr.P.C. read with Section 138 of Negotiable Instruments Act, 1881 (‘the Act’ for brevity), seeking action against the respondent for the alleged dishonor of cheque issued by the respondent. The said complaint having been presented before the expiry of the period prescribed under Section 138(c) of the Act, the complaint was dismissed as premature. The petitioner carried the matter in Revision before the District and Session Judge, Mandya. When the matter was pending consideration, the petitioner filed a memo for withdrawal reserving liberty to approach the appropriate Court. In view of the said memo, the Revision Petition was dismissed as withdrawn, reserving liberty to the petitioner to approach the appropriate Court as deemed fit.
4. The learned counsel for the petitioner has placed reliance on the decision of the Hon’ble Supreme Court in the case of Yogendra Pratap Singh v/s Savitri Pandey and Another reported in (2014) 10 SCC 713, wherein the question as to whether cognizance of an offence punishable under Section 138 of the Act be taken on the basis of the 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, was referred to the larger Bench for consideration. The said question has been answered in the negative by the larger Bench. However, in respect of the pending matters in paragraph 41 of the said decision, the Hon’ble Supreme Court has held as under:
“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.”
5. Undisputedly, as on the date of pronouncement of the said decision, the Revision Petition filed by the petitioner in Crl.R.P.No.213/2013 was pending consideration before the revisional Court. The petitioner himself sought to withdraw the said Revision Petition, apparently, for the reason that the complaint filed by him was not maintainable. Under the said circumstances, the only remedy available for the petitioner was to present a fresh complaint within the time prescribed under Section 142(b) of the Act.
6. The petitioner having not presented the said complaint within the prescribed time limit, this Court in exercise of the jurisdiction under Section 482 of Cr.P.C. cannot come to the aid of the petitioner. However, liberty is reserved to the petitioner to take benefit of the concession granted by the Hon’ble Supreme Court in the above decision, if available under law.
With these observations, the Criminal Petition is disposed of.
Sd/- JUDGE SV