2. The Petitioners, who are arrayed as A1 to A5, herein seek to quash the criminal proceedings in CC.Nos.1282, 1283 and 84 of 2005 on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai for the offence under Section 138 of the Negotiable Instruments Act.
3. The Respondents filed the said private complaints against the Petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act in respect of dishonour of cheques issued by the Petitioners.
4. As per the complaints given against the Petitioners, it is seen that the 1st petitioner is the Partnership Firm and the Petitioners 2 to 5 are its Partners. The 2nd accused/2nd Petitioner in the capacity of Managing Partner of the A1 Partnership Firm and also on behalf of the other Partners approached the complainants to extend loan facility for the purpose of sub contract work on behalf of M/s.Afcons Infrastructure Limited in respect of the Work Order for quarrying and supplying of sized spalls at Vallakottai yard for Poonamallee Kancheepuram Road Works and borrowed a sum of Rs.8 lakhs and issued cheques for the said liability. When the said cheques have been presented by the complainant for encashment, they were returned with an endorsement "funds insufficient". Thereafter, the complainants had issued a statutory notice on 3.4.2004, calling upon the accused/petitioners to pay the amount covered under the cheques within 15 days. The Petitioners received the said notice on 8.4.2004, but neither paid the amount nor replied to the said notice. Hence, the Respondents have filed the present complaints.
5. The details of cheques in question in all these Criminal Original Petitions are given below:-
Cr.OP.31536/06 Two cheques bearing Nos.027396 dated 16.10.20034 for Rs.1,00,000/- and 021214 dated 26.03.2004 for Rs.7 lakhs drawn on Centurian Bank, Sriperumbudur.
Cr.OP.31537/06 Two cheques bearing Nos.020549 dated 26.3.2004 for Rs.2 lakhs and 020550 dated 26.03.2004 for Rs.2 lakhs drawn on Centurian Bank, Sriperumbudur.
Cr.OP.31538/06 Two cheques bearing Nos.020548 dated 26.3.2004 for Rs.2 lakhs and 020547 dated 26.03.2004 for Rs.50,000/- drawn on Centurian Bank, Sriperumbudur.
6. It is not in dispute that the cheques in question have been returned with an endorsement "funds insufficient" on 10.3.2004, 29.3.2004, 28.3.2004 and 30.3.2004 respectively and the Respondents issued a statutory notice on 3.4.2004, which has been received by the Petitioners on 8.4.2004. The complaints have been filed on 31.5.2004 and summons had been issued to the Petitioners. There is a delay of seven days in filing the complaints. Admittedly, no petition has been filed to condone the delay, but the learned Metropolitan Magistrate has straightaway taken cognizance of the complaints for the alleged offence under Section 138 of the Negotiable Instruments Act, without being satisfied himself as to whether there was sufficient cause to condone the delay.
7. Mr.K.V.Ramesh, learned counsel for the Petitioners contended that ex-facie the complaints were barred by limitation, as there was no application for condoning the delay and the cognizance taken by the learned Metropolitan Magistrate is unsustainable. In support of his contention, the learned counsel relied on the decisions of this court rendered in the cases of Thiruchengode Agricultural Producers Cooperative Marketing Society Limited and others Vs. Employee's State Insurance Corporation by the Insurance Inspector (Legal) [2009-2-CLT-380] and S.Saravanan Vs. P.C.Viswanathan [2008-2-TLNJ-363-Criminal], wherein it is held that in the absence of satisfactory explanation for the delay caused in preferring the complaint as stipulated in the Negotiable Instruments Act, the proceedings are liable to be quashed.
8. In view of the proviso to
Section 142(b) of the Negotiable Instruments Act, it has become permissible for the complainant to file an application for condoning the delay on complaint being filed beyond the period of limitation and on such application being filed, the learned Magistrate has a discretion to condone the delay, if sufficient cause is made out for not making the complaint within the period prescribed in clause (b). Admittedly, in this case, the complaint has been taken on file straightway, though there was a delay of 7 days in filing the complaint without following the procedure prescribed under
Section 142(b) of the Negotiable Instruments Act.
9. The complainants have not filed any application setting out the reasons for the delay caused. When an application for condonation of delay is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declining the same. Undoubtedly, a right accrues in favour of the accused when there is a delay in lodging the complaint. But that right has been lost to the Petitioner. It it true that it is only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused, who cannot be shut out from such proceedings. Though the accused is out of picture till the complaints are taken cognizance of by the Court, an indefeasible right of the accused is found incorporated under
Section 142(b) of the Negotiable Instruments Act. Therefore, the court by exercising its discretion under the proviso to the aforesaid provision of law is empowered to make a dent in such right of the accused by extending the period of limitation on satisfying itself of the reasons assigned by the complainant. Therefore, the complainant should file an affidavit, setting forth the reasons for the delay and the discretion of the court to condone such a delay can be exercised only after affording an opportunity to the accused to contest the reasons assigned by the complainant. But, in the instant case, the learned Judicial Magistrate, before taking cognizance and recording sworn statement, has not given an opportunity for the Petitioners/accused to contest the application, which is opposed to principles of natural justice.
10. Mr.S.Udayakumar, learned counsel for the Respondent drew the attention of this court to the decision of this court rendered in the case of R.Kanthimathi and two others Vs. Bank of India, Dharmapuri Branch by its Senior Manager, Vijayaragaran, Dharmapuri [2007-4-CTC-524], wherein liberty was given to the Petitioner to file a petition to condone the delay and also directed the trial court to provide opportunity to the Petitioners to raise their defence by way of filing counter and thereafter, if the court satisfies that there are adequate and cogent reasons to condone the delay, the same can be decided on merits. He submitted that as it is a curable defect, in this case the complainants may be given an opportunity to file an application to condone the delay. In the said case, there was already a petition to condone the delay was filed, but without filing a supporting affidavit and therefore, this court gave liberty to the Respondent/complainant to file an affidavit, setting out the reasons for the delay and directed the trial court to provide opportunity to the accused to file his counter. But, in the present case, no application had been filed and straightway the learned Magistrate has taken cognizance of the offence without even satisfying himself as to whether the complaint has been filed within the limitation period as prescribed under Section 138 of the Negotiable Instruments Act.
11. In a recently reported decision rendered in the case of Subodh S.Salaskar Vs. Jayaprakash M.Shah and another [AIR-2008-SC-3086] the Honourable Supreme Court has held that the provisions of the Negotiable Instruments Act being special in nature, conferring jurisdiction upon the court to condone the delay under Section 142 of the Negotiable Instruments Act, is a substantive provision and not a procedural one and therefore, it could not be given a retrospective effect or retroactive operation. It is held thus:-
"24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or
Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation."
ARUNA JAGADEESAN, J.
Srcm
12. In view of the law laid down by the Honourable Supreme Court, the proviso to Clause (b) of Section 142 of the Negotiable Instruments Act has been inserted, conferring jurisdiction upon the court to condone the delay, in case if the complaint was not filed within the limitation period of 30 days in terms of the proviso appended thereto. As the said provision has been held to be a substantive provision and not a procedural one, the complaint being filed beyond the period of limitation, it cannot be entertained by allowing the Respondents to file an application after it has been taken cognizance of by the learned Magistrate. That being so, the cognizance taken by the learned Judicial Magistrate is without any sanction of law and therefore, I am of the considered opinion that it deserves to be quashed and accordingly, it is quashed. These Criminal Original Petitions stand allowed. Consequently, the connected MPs are closed.
23.07.2009 Index:Yes/No Web:Yes/No Srcm To:
1.The XVII Metropolitan Magistrate, Saidapet, Chennai
2.The Public Prosecutor, High Court, Madras Pre Delivery Order in Crl.OP.Nos.31536 to 31538/2006