The Patna High Court, while allowing a petition filed for quashing of the order dated 08.09.2014 passed by the learned Judicial Magistrate by which the cognizance was taken under section 138 of the Negotiable Instrument Act, held that the complainant has to satisfy it showing sufficient cause for delay and the satisfaction of the learned Magistrate has to be incorporated in the order taking cognizance.
Brief Facts:
The petitioner came to the complainant’s house and made a request for a loan amount of Rs. 8 lakhs. As they knew each other, the payment was made on 15.03.2013 and the petitioner assured to return the same by 15.06.2013. However, no payment being made, the respondent made a request on 26.06.2013 following which a Cheque was issued. However, upon production of the cheque, it was dishonored for want of sufficient funds. This led to the filing of the Complaint in which after inquiry under section 202 of the Cr.P.C., the cognizance has been taken under section 138 of ‘the N.I. Act’ on 08.09.2014.
Contentions of the Petitioners:
The Learned Counsel for the Petitioners submitted that so far as the issuance of a cheque of Rs. 8 lakhs is concerned, the same was stolen by the opposite party no. 2 as he used to come to petitioner’s home and for that, he lodged a case under sections 406, 420 and 379 of the Indian Penal Code against the complainant. She argued that neither the complaint shows the reason for the delay nor the order taking cognizance shows the satisfaction of the learned Magistrate and in that background, the case is fit to be allowed.
Contentions of the Respondents:
The Learned Counsel for the Respondent submitted that though there has been a delay in filing the complaint, the learned Magistrate is fully authorized to take cognizance even after the prescribed period as per the ‘N.I. Act’ and in that background, no interference is required.
Observations of the Court:
The Court noted that the cheque has to be presented to the Bank within six months from the date on which it is drawn or within a period of its validity whichever is earlier. Section 142 of ‘the N.I. Act’ debars the Court from taking cognizance of an offense punishable under section 138 of ‘the N.I. Act’ if such complaint is not made within one month from the date on which cause of action arises under clause (c) of the proviso to section 138. The said section does allow the Court to take cognizance beyond the prescribed period but the complainant has to satisfy it showing sufficient cause for delay and the satisfaction of the learned Magistrate has to be incorporated in the order taking cognizance.
The Court observed that no explanation was made by the opposite party no. 2 in his complaint. The Court too did not record its satisfaction showing reason to accept the complaint beyond the prescribed period. In that circumstance, the Court certainly exceeded its jurisdiction in taking cognizance of the matter.
The decision of the Court:
The Patna High Court, allowing the petition, held that in the absence of sufficient reason given by the opposite party no. 2, there was no question for the learned Magistrate to take cognizance
Case Title: Krishna Mohan Kumar v The State of Bihar & Anr.
Coram: Hon’ble Justice Rajiv Roy
Case no.: CRIMINAL MISCELLANEOUS No.27813 of 2015
Advocate for the Petitioner: Mrs. Bela Singh
Advocate for the Respondents: Mr. Nawal Kishore
Read Judgment @LatestLaws.com
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