The Patna High Court, while allowing a revision petition filed against an order passed by the Learned Sessions Judge vide which he had provided another opportunity to the complainant, held that a complaint under Section 138 of the Negotiable Instruments Act may also be filed after the expiry of one month from the date of accrual of cause of action, under Clause (e) of the proviso to Section 138 if the complainant is able to show that he was prevented by sufficient cause from making any complaint within the statutory period of time.
Brief Facts:
The complainant issued a notice on 2nd July 2013 requesting the payee to make payment of the cheque amount within the statutory period of time as stipulated in proviso (b) (2) Section 138. However, the cheque amount was not paid. Therefore, the complainant was under obligation to file a complaint under Section 138 of the Negotiable Instruments Act in terms of the provisions contained in Section 142 (1) (b) i.e. within one month of the date on which the cause of action arises under Clause (e) of the proviso to Section 138. The complainant did not file such an application within the statutory period of time. The learned Magistrate held that the petition of complaint suffers from a delay. No application for condonation of delay was filed and, therefore, the complaint under Section 138 of the Negotiable Instruments Act was barred. The complainant preferred a revision before the learned Sessions Judge at Nawada which was disposed of on 5th August 2017, and the complainant was provided one more opportunity.
Observations of the Court:
The Court noted that it fails to comprehend how a Senior Officer like a Sessions Judge held that a complaint under Section 138 of the Negotiable Instruments Act may be filed within three months of the date on which the cause of action arises under Clause (e) of the proviso to Section 138 when Section 142 (1) (b) clearly states that the complaint is to be filed within one month of the date on which the cause of action arose. A proviso has been added to Clause (b) of Section 142 allowing the Court to take cognizance of a complaint after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for making a complaint within such period.
The Court observed that a complaint under Section 138 of the Negotiable Instruments Act may also be filed after the expiry of one month from the date of accrual of cause of action, under Clause (e) of the proviso to Section 13,8 if the complainant is able to show that he was prevented by sufficient cause from making any complaint within the statutory period of time; no such application was filed before the learned Magistrate. The court of revision can not grant further time allowing the complainant to file an appropriate application for condonation of delay sitting in revision when such case was not even made before the learned Sessions Judge
The decision of the Court:
The Patna High Court, allowing the revision petition, held that the impugned order dated 5th August 2017, passed by the learned Sessions Judge, is not only bad in law but perverse and beyond his jurisdiction.
Case Title: Kameshwar Prasad Singh & Anr. v State of Bihar & Anr.
Coram: Hon’ble Justice Bibek Chaudhuri
Case no.: CRIMINAL REVISION No.1055 of 2017
Advocate for the Petitioner: Mr. Deepak Kumar
Advocate for the Respondents: Mr. Md. Sufiyan
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