Sunday, 25 October 2015

Procedure to be followed by magistrate while deciding delay condonation application in complaint under S 138 of NI Act

All that the proviso indicates is that the Complainant is required to satisfy the Court that he had sufficient cause for not making the Complaint within the prescribed period.
Therefore, the issue as to whether or not there was sufficient cause for not making the Complaint within the prescribed period of limitation, is a matter essentially between the Complainant and the Court, and if satisfied, on whatsoever material the Complainant may place before the Court as to the existence of sufficient cause contemplated by the proviso, the Court may take cognizance of the Complaint and thereafter deciding on merits, decide on the issuance or otherwise of process against the accused.
Hearing the accused before taking cognizance of a Complaint on a question as to whether or not delay merited condonation does not appear to have been intended by the legislature. This is additionally so because taking cognizance on a time barred Complaint, may not, as such, offend any such right of the accused for which opportunity of hearing to him may be conceived, in law.
Even otherwise the purpose of providing for a speedier remedy against dishonoured cheques, would loose its efficacy, in case, the accused were to be heard before taking cognizance of a Complaint, for such a course would lead to a full-fledged enquiry before the issue of process, which may frustrate the very purpose for which Section 138 of the Negotiable Instruments Act has been incorporated as penal offence for dishonour of cheques.
Not only that, the position in law being settled that an accused is not entitled to hearing before issuance of process, no opportunity of hearing to him at a stage prior thereto may be conceived of. Yet another reason which justifies the above view is that an accused does not come into picture unless the process was issued against him and even after the issuance of process, he has no right to question the legality or otherwise of the process issued by the Court, before the Magistrate, unless the case reaches the stage, where he would be required to enter upon the defence. It is at this stage that he would be at liberty to take all such defences, as may be available to him to defeat his prosecution and punishment. While dealing with cases under the Penal Laws, the procedure prescribed for the trial thereof, takes care of the principles of Natural Justice and no further additional right, not contemplated by the procedure, may, therefore, be warranted, for such a course would amount to rewriting the procedure prescribed by law for trial of the Penal offences.
For all what has been said above, it, therefore, becomes apparent that the law may not contemplate hearing an accused before taking cognizance or issuance of process against him.
Therefore, with utmost respect to the views expressed by the other High Courts of the Country, decision whereof were referred to by the petitioner s learned counsel, I have not been able to subscribe to the view that refusal to provide opportunity of hearing to an accused in a time barred Complaint before entertaining the Complaint and issuance of process offends the principles of Natural Justice. This is so because opportunity of hearing may not be conceived for each and every action against the opposite party. Such an opportunity may be required only when non-affording of opportunity would violate any existing right of the person sought to be proceeded against. The right of Personal Liberty guaranteed under Article 21 of the Constitution of India may be curtailed by the procedure prescribed by law. The procedure already in vogue, takes care of the right of Personal liberty of the accused and in this view of the matter when Section 142 of the Act, does not in terms contemplate hearing to an accused before taking cognizance of a time barred Complaint, no additional right of hearing may be conceded to the accused.
It is, therefore, held that the accused is not entitled to hearing before a Court may consider taking cognizance of a time barred Complaint for commission of offence punishable under Section 138of the Negotiable Instruments Act, 1881.
The submissions made by the petitioner s learned counsel are, therefore, found untenable, hence rejected. This would not, however, mean that time barred Complaints can be entertained as a matter of course and without complying with the provisions of the proviso appended to Section 142(b) of the Act, which, in unambiguous terms, requires the Court to record satisfaction that the complainant had sufficient cause for not making the Complaint within the period prescribed underSection 142.
The satisfaction contemplated by the proviso is not an idle formality and the Court taking cognizance has to specifically say, opening its mind and spelling out reasons to support its view as to whether or not the complainant had succeeded in making out sufficient cause, which had disabled him/her to file the Complaint within the prescribed period.
Jammu High Court
Sushant Bakshi vs Chandra Sharma Versus Kaushal ... on 30 March, 2011

To discharge the existing liability arising out of a Contract for Fabrication of a Pandal at Jammu, the petitioner-Sushant Bakshi delivered Cheque dated 01.01.2004 for Rs.50,000/- to the respondent-Manju Ghosh. When presented for payment it was dishonoured. Notice dated 23.03.2004 served by the respondent on the petitioner requiring him to pay the amount of the dishonoured Cheque, remained unheeded. The respondent thereafter filed a Complaint against the petitioner seeking his conviction and punishment for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Seeking condonation of delay, which had occasioned in filing the Complaint beyond the period prescribed under Section 142 of the Negotiable Instruments Act, it was stated in the Complaint that the Complainant s husband had met with an accident and her infant daughter taken seriously ill at Gurgoan, which had disabled the filing of the Complaint within the time prescribed therefor.
Taking cognizance of the Complaint, the learned Chief Judicial Magistrate, Jammu, issued process against the petitioner.
Aggrieved by Order dated May 20, 2004 of the learned Chief Judicial Magistrate and Order dated December 26, 2005 of the learned Ist Additional Sessions Judge, Jammu, dismissing the petitioner s Revision against the learned Chief Judicial Magistrate s Order, the petitioner has approached this Court seeking quashing of the Orders of the two Courts urging that having entertained the Complaint, without providing opportunity of hearing to the petitioner while considering respondent s request for condonation of delay in filing the Complaint, the learned Chief Judicial Magistrate had acted without jurisdiction and his order was, therefore, illegal and void.
Appearing for the petitioner, his counsel Sri K.S.Pathania, submitted that the respondent s Complaint being barred by time, delay in its filing could be condoned, only after hearing the petitioner, who was arrayed as accused in the Complaint and that the process issued by the learned Chief Judicial Magistrate, without hearing the petitioner on the issue as to whether the delay deserved condonation, was illegal and violative of the principles of Natural Justice flowing from the maxim audi alteram partem.
Learned counsel placed reliance on State of Maharashtra versus Sharad Chandra Vinayak Dongre and others, reported as AIR 1995 Supreme Court, 231, P.K.Choudhury versus Commander, 48 BRTF (GREF), reported as 2008 (2) Criminal Court Cases, 126 (S.C.), M/s Pepsi Foods Limited and another versus Special Judicial Magistrate and others, reported as 1998 Supreme Court, 128, Prashant Goel versus State and another, reported as 2007 (1) Criminal Court Cases, 838 (Delhi), Gautam Saikia versus Diganta Sarmah, reported as 2009 (1), Civil Court Cases, 132 (Gauhati), Sajjan Kumar Jhunjhunwala and others versus M/s Eastern Roadways Private Limited, reported as 2007 (3), Civil Court Cases, 203 (Karnataka), M/s Keciyo Coconut Oils Private Limited and others versus State of Kerala, reported as 2002 Cri. L. J., 1087, Parkash Chandra Sharma versus Kaushal Kishore, reported as 1980 Cri. L.J, 578, to support his submissions. Supporting the process issued on the respondent s Complaint, the respondent s learned counsel Sri Navneet Dubey would say that there being no provision in the Negotiable Instruments Act, 1881 contemplating opportunity of hearing to an accused before considering the issuance of process, the petitioner was not required to be heard by the Court while considering the complainant s plea for Condonation of delay in filing the Complaint and issuance of process thereon, and in this view of the matter, the cognizance taken by the learned Magistrate, on being satisfied that the delay in filing the Complaint, was sufficiently explained by the complainant, cannot be faulted.
I have considered the submissions of learned counsel for the parties and gone through the case law cited at the Bar.
The question that falls for determination in this Criminal Revision is:
Whether a Court empowered to take cognizance of offence punishable under Section 138 of the Negotiable Instruments Act, is, in law, required to hear the accused when the Complaint was made after the time prescribed for its filing under Section 142(b) of the Negotiable Instruments Act, 1881 explaining the delay in its filing before taking cognizance? First of all, I would refer to the judgments of the Hon ble Supreme Court of India, referred to by the petitioner s learned counsel, to examine as to whether the issue demonstrated at the Bar has been dealt with and answered by the Apex Court.
Referring to an earlier decision in State of Maharashtra vs. Sharadchandra Vinayak Dongre and ors., reported as (1995)1SCC 42, Hon ble Supreme Court of India, observed in P.K.Choudhury vs. Commander, 48 BRTF(GREF), reported as 2008 (2) Criminal Court Cases, 126 (S.C.) as follows:-
In view of the aforesaid decision, there cannot be any doubt whatsoever that appellant was entitled to get an opportunity of being heard before the delay could be condoned. As the Hon ble Supreme Court of India has not dealt with and ruled on the issue that falls for determination in this case, in P.K.Choudhury s case (supra) and had observed as referred to hereinabove, on the basis of what was said in Sharadchandra Vinayak Dongre s case (supra), so what was held in Sharadchandra Vinayak Dongre s case needs to be noticed to find answer to the issue.
I would, therefore, refer to what was said by their lordships in Vinayak Dongre s case. It reads thus:- In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a supplementary charge sheet on the basis of an incomplete charge-sheet and quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous. Perusal of the above observations of the Hon ble Supreme Court in Vinayak Dongre s case, reveals that the judgment was delivered by the Court, in the facts and circumstances of the case and the question of law that needs determination in this case had not fallen for consideration of the Hon ble Supreme Court. The contentions, which have been raised by the learned counsel for the parties in this case, were not the contentions before the Hon ble Supreme Court. The judgments referred to by the learned counsel for the petitioner may not, therefore, be relevant to determine the issue canvassed at the Bar.
Thus getting no support from the judgments referred to above, the issue needs to be determined on its own merit.
Before dealing with the issue in question, another ancillary issue too would need consideration viz. whether taking cognizance of a Complaint, barred by time, without hearing the accused, violates the principles of Natural Justice.
To deal with the issue, regard needs to be had to the provisions of Section 142 of the Negotiable Instruments Act. It reads thus:-
[142. Cognizance of offence. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
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 in due course of the cheque;
b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint 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 such period.]
c) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] A plain reading of the proviso appended toSection 142(b) of the Act may not contemplate affording opportunity of hearing to an accused before taking cognizance of a Complaint for commission of the offence contrary to the provisions of Section 138 of the Act, in a Complaint made after the period prescribed under Section 142 (b) of the Act.
All that the proviso indicates is that the Complainant is required to satisfy the Court that he hadsufficient cause for not making the Complaint within the prescribed period.
Therefore, the issue as to whether or not there was sufficient cause for not making the Complaint within the prescribed period of limitation, is a matter essentially between the Complainant and the Court, and if satisfied, on whatsoever material the Complainant may place before the Court as to the existence of sufficient cause contemplated by the proviso, the Court may take cognizance of the Complaint and thereafter deciding on merits, decide on the issuance or otherwise of process against the accused.
Hearing the accused before taking cognizance of a Complaint on a question as to whether or not delay merited condonation does not appear to have been intended by the legislature. This is additionally so because taking cognizance on a time barred Complaint, may not, as such, offend any such right of the accused for which opportunity of hearing to him may be conceived, in law.
Even otherwise the purpose of providing for a speedier remedy against dishonoured cheques, would loose its efficacy, in case, the accused were to be heard before taking cognizance of a Complaint, for such a course would lead to a full-fledged enquiry before the issue of process, which may frustrate the very purpose for which Section 138 of the Negotiable Instruments Act has been incorporated as penal offence for dishonour of cheques.
Not only that, the position in law being settled that an accused is not entitled to hearing before issuance of process, no opportunity of hearing to him at a stage prior thereto may be conceived of. Yet another reason which justifies the above view is that an accused does not come into picture unless the process was issued against him and even after the issuance of process, he has no right to question the legality or otherwise of the process issued by the Court, before the Magistrate, unless the case reaches the stage, where he would be required to enter upon the defence. It is at this stage that he would be at liberty to take all such defences, as may be available to him to defeat his prosecution and punishment. While dealing with cases under the Penal Laws, the procedure prescribed for the trial thereof, takes care of the principles of Natural Justice and no further additional right, not contemplated by the procedure, may, therefore, be warranted, for such a course would amount to rewriting the procedure prescribed by law for trial of the Penal offences.
For all what has been said above, it, therefore, becomes apparent that the law may not contemplate hearing an accused before taking cognizance or issuance of process against him.
Therefore, with utmost respect to the views expressed by the other High Courts of the Country, decision whereof were referred to by the petitioner s learned counsel, I have not been able to subscribe to the view that refusal to provide opportunity of hearing to an accused in a time barred Complaint before entertaining the Complaint and issuance of process offends the principles of Natural Justice. This is so because opportunity of hearing may not be conceived for each and every action against the opposite party. Such an opportunity may be required only when non-affording of opportunity would violate any existing right of the person sought to be proceeded against. The right of Personal Liberty guaranteed under Article 21 of the Constitution of India may be curtailed by the procedure prescribed by law. The procedure already in vogue, takes care of the right of Personal liberty of the accused and in this view of the matter when Section 142 of the Act, does not in terms contemplate hearing to an accused before taking cognizance of a time barred Complaint, no additional right of hearing may be conceded to the accused.
It is, therefore, held that the accused is not entitled to hearing before a Court may consider taking cognizance of a time barred Complaint for commission of offence punishable under Section 138of the Negotiable Instruments Act, 1881.
The submissions made by the petitioner s learned counsel are, therefore, found untenable, hence rejected. This would not, however, mean that time barred Complaints can be entertained as a matter of course and without complying with the provisions of the proviso appended to Section 142(b) of the Act, which, in unambiguous terms, requires the Court to record satisfaction that the complainant had sufficient cause for not making the Complaint within the period prescribed underSection 142.
The satisfaction contemplated by the proviso is not an idle formality and the Court taking cognizance has to specifically say, opening its mind and spelling out reasons to support its view as to whether or not the complainant had succeeded in making out sufficient cause, which had disabled him/her to file the Complaint within the prescribed period.
Keeping the above legal position in view, I would now proceed to examine as to whether or not the learned Chief Judicial Magistrate s order was sustainable.
Perusal of the learned Chief Judicial Magistrate s order reveals that neither has he hinted at condoning the delay in filing the Complaint nor has he spelt out any reason justifying condonation of delay in filing the Complaint in his order, although the complainant had indicated reasons that had delayed the filing of the Complaint.
While entertaining a time barred Complaint, the Court is required to consider the complainant s request in the light of his/her statement on oath and any other material placed by him/her on records, before considering on entertaining or otherwise of the Complaint and issuance of process against the accused. The learned Chief Judicial Magistrate has not complied with the requirement of the proviso appended to Section 142 of the Negotiable Instruments Act and thus, erred in passing a mechanical order of issuing process against the petitioner without applying his mind on the complainant s plea seeking condonation of delay in filing the Complaint.
Learned First Additional Sessions Judge, Jammu too has erred in not correcting the error committed by the learned Chief Judicial Magistrate, which was apparent on the records.
This Petition, therefore, succeeds and is, accordingly, allowed setting aside order dated May 20, 2004 of the learned Chief Judicial Magistrate and order dated December 26, 2005 of the learned First Additional Sessions Judge, Jammu.
The respondent s Complaint is sent back to the learned Chief Judicial Magistrate, Jammu to consider the respondent s request to condone the delay for taking cognizance and issuance of process against the accused, if warranted under law.
(J. P. Singh) Judge Jammu:
30.03.2011 Vinod.
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