AI Structured Summary
Not yet generated for this judgment
Judgment
N.Sathish Kumar, J
Since the issues involved in all the criminal original petitions are one and the same and between the same parties, all the Criminal Original Petitions were heard together.
Challenging the impugned order passed by the Revisionary Court dismissing the Revision filed by the petitioner against the order passed by the learned Metropolitan Magistrate in Crl.M.P.Nos.92(M) to 97(M) of 2019 in C.C.Nos.59 to 64 of 2017, the petitioner has filed these Criminal Original Petitions.
It appears that the trial has already been commenced and substantial evidence have also come on record and at that stage an application to condone the delay of 5 days in preferring the complaint was filed by the respondent/complainant before the learned Magistrate. The same was opposed by the petitioner herein. However, the learned Magistrate considering the judgment of this Court in G.Venkatesan (died) and Ors. Vs. Kamala reported in 2015 SCC Online Mad 13901 allowed the application, which has been challenged before the Revisionary Court and the said Court also dismissed the revision. Challenging the same, the present criminal original petitions have been filed.
The main ground raised in these petitions is that the date of cheque is 03.06.2016, which was presented on 03.09.2016 and returned on 07.09.2016, though the first demand notice was on 26.09.2016, the same has been suppressed in the complaint, however, during cross examination, the same has been marked as Ex.D1. So, according to the petitioner, 30 days period for notice ends on 07.10.2016, whereas, the second demand notice was issued only on 07.10.2016 and the complaint was filed on 30.11.2016, and there is a delay of 15 days for the first demand notice and 5 days delay for the second demand notice. Hence, it is the contention of the petitioner that Statutory provision mandates filing of the complaint within one month of expiry of 15 days period of making payment and no further time can be extended by virtue of the reply notice of the accused. Therefore, according to the petitioner, only to get over the limitation aspect, the complainant has suppressed the first demand notice and also the acknowledgment card of the second demand notice. At any event, it is his contention that there is no pleading or document to show how the delay of 5 days was calculated in the condone delay petition. Therefore, it is his further contention that taking cognizance of the case is not in accordance to law and barred by law. Hence, he seeks to quash the entire proceedings.
Mr.J.Ravikumar, learned counsel appearing for the petitioner/accused vehemently contended that the complaint filed under the Negotiable Instruments Act, 1881 was taken cognizance by the learned Magistrate beyond the period of limitation. Only during the trial, at the last stage of trial, an application has been filed under Section 142 of the Negotiable Instrument Act, to condone the delay of 5 days and the learned Magistrate has allowed the said application. Though the same has been challenged in Revision, the Revisionary Court has also dismissed the Revision, hence the same is challenged before this Court.
It is the further contention of the learned counsel appearing for the petitioner that allowing the application to condone the delay after taking cognizance is not maintainable under law. According to him, the proviso to Section 142(b) of the Negotiable Instruments Act is a substantive provision and not a procedural one and it cannot be given retrospective effect, therefore after taking cognizance by the learned Magistrate, the delay cannot be condoned. It is also submitted that condonation of delay must precede taking cognizance of the offence. Such condonation is not permissible under law after taking cognizance of the complaint by the learned Magistrate and therefore seeks to quash the entire proceedings. In support of his contentions, the learned counsel for the petitioner relied on the following judgments:
(i) Kathamuthu Vs. Balammal reported in 1985-L.W.(Crl) 252;
(ii) Commissioner of Wealth Tax, Meerut Vs. Sharvan Kumar Swarup & Sons reported in (1994) 6 SCC 623;
(iii) Subodh S.Salaskar Vs. Jayprakash M.Shah and Others reported in (2008) 13 SCC 689;
(iv) Sri Vasudharini Enterprises and Ors Vs. K.Sundar Ramanujam in Crl.O.P.No.31536 of 2006 decided on 23.07.2009.
(v) S.V.Finance Vs. Paramasivam in Crl.A.(MD).No.104 of 2008, decided on 09.06.2010
(vi) Sarah Mathew and Ors Vs. Institute of Cardio Vascular Diseases by its Director K.M.Cherian and Ors reported in AIR 2014 SC 448; and
(vii) Chokkakula Eswara Rao Vs. Badireddi Suryanarayana and Ors reported in 2019 (3) ALT (Crl.) 280 (A.P.).
Mr.Nithyaesh Natraj, learned counsel appearing for the first respondent/complainant would submit that the learned Magistrate has relied upon a judgment of this Court in G.Venkatesan (died) and Ors. Vs. Kamala reported in 2015 SCC Online Mad 13901, wherein, this Court has held that as the trial Court has not noticed the delay when the complaint was presented and has inadvertently taken cognizance and if the lower Court has noticed the delay, it would have called upon the respondent therein to explain the delay and directed the learned Magistrate to give an opportunity to the respondent therein to file a petition to condone the delay of 10 days in filing the complaint and if any such petition is filed, notice should be ordered to the petitioner therein and after giving an opportunity of hearing to him appropriate orders should be passed in the petition seeking condonation of the delay.
The learned counsel for the first respondent/complainant therefore submitted that only on the basis of the above judgment of this Court and also considering various other judgments, the trial Court has rightly condoned the delay in the post cognizance stage. Hence, it is his contention that there is no illegality in the impugned order and sought for dismissal of the quash petitions. In support of his contention, the learned counsel for the first respondent relied upon the judgment of this Court in G.Venkatesan (died) and Ors. Vs. Kamala reported in 2015 SCC Online Mad 13901.
I have considered the rival submissions and also carefully perused the materials available on record.
In judgment of the Hon'ble Supreme Court relied upon by the learned counsel appearing for the petitioner, in Subodh S.Salaskar Vs. Jayprakash M.Shah and Others reported in (2008) 13 SCC 689, the Hon'ble Supreme Court has held that if the proviso to Sub Section (b) of Section 142 of the Negotiable Instruments Act contained a substantive provision as it confers jurisdiction on Court to condone delay and not a procedural one, it could not have been given a retrospective effect as a substantive law, in absence of an express provision.
In Kathamuthu Vs. Balammal reported in 1985-L.W.(Crl) 252 a Division Bench of this Court dealt with Section 473 of Cr.P.C. and held that condonation of delay must precede the taking cognizance of the offence and the learned Magistrate is not competent to condone the delay after taking cognizance of the complaint.
A learned Single Judge (Justice Aruna Jagadeesan) of this Court in Sri Vasudharini Enterprises and Others Vs. K.Sundar Ramanujam in Crl.O.P.No.31536 of 2006, decided on 23.07.2009, has held as follows:
"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. "
Similar view has also been taken by another learned Single Judge (Justice T.Mathivanan) of this Court in S.V.Finance Vs. Paramasivam in Crl.A.(MD).No.104 of 2008, decided on 09.06.2010.
Whereas, another learned Single Judge (Justice B.Rajendran) of this Court in G.Venkatesan (died) and Ors. Vs. Kamala reported in 2015 SCC Online Mad 13901, while setting aside the order of the learned Magistrate taking cognizance, remanded the matter with a direction to the learned Magistrate to give an opportunity to the complainant to file a petition to condone the delay.
Before venturing into the merits of this case, it is useful to refer to Section 142 of the Negotiable Instruments Act, 1881 and the same is extracted hereunder:
“Section 142. Cognizance of offences. — 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....."
The proviso to Section 142(b) of the Negotiable Instruments Act, makes it clear that the Court may take cognizance after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Proviso to Section 142(b) makes it very clear that before taking cognizance of the complaint, the application for condonation of delay must be made before the Court showing sufficient cause for not making the complaint within such period. The Hon'ble Supreme Court in Subodh S.Salaskar Vs. Jayprakash M.Shah and Others reported in (2008) 13 SCC 689, has held that the proviso to Sub Section (b) of Section 142 of the Negotiable Instruments Act is a substantive provision and cannot be given retrospective effect.
Such view of the legal position, two learned Single Judges (Justice Aruna Jagadeesan and Justice T.Mathivanan) of this Court have held that the proviso to Sub Clause (b) of Section 142 of the Act is a substantive provision and it cannot be given retrospective effect, whereas, another learned Single Judge (Justice B.Rajendran) of this Court has held that the application to condone the delay can be entertained even after cognizance has been taken by the Court.
As there are divergent views, this Court is of the considered view that for authoritative pronouncement, the matter may be placed before My Lord, the Honourable The Chief Justice, for constituting an appropriate Larger Bench for answering the following reference:
(i) Whether an application to condone the delay in preferring a complaint can be entertained by the learned Magistrate after taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 ?
(ii) Whether the condoning of delay is permissible post cognizance of the offence under Section 138 of the Negotiable Instruments Act by invoking the proviso to Section 142 of the Negotiable Instruments Act, 1881 ?
The Registry is directed to place this matter before My Lord, the Honourable the Chief Justice, for constituting an appropriate Larger Bench, for answering the above reference. Interim order already passed in above O.Ps extended till further orders.