Allahabad High Court
Sri Ansar Ali Rana vs State Of U.P. & Others on 17 May, 2017
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 53
Case :- CRIMINAL REVISION No. - 3315 of 2011
Revisionist :- Sri Ansar Ali Rana
Opposite Party :- State Of U.P. & Others
Counsel for Revisionist :- K.K. Arora
Counsel for Opposite Party :- Govt. Advocate,Narender Mohan
Hon'ble Pratyush Kumar,J.
List revised. None responds for O.P. No.2. Though appearance has been put in on his behalf, but no counter affidavit has been filed.
Heard Shri K.K. Arora, learned counsel for the revisionist.
By the instant revision the accused-revisionist questions the correctness of the judgment and order dated 27.1.2000 passed by the IInd Additional District & Sessions Judge, Meerut in Criminal Revision No.9 of 1997, Arun Kumar Maheshwari Vs. Ansar Ali Rana whereby order dated 13.12.1996 dismissing the complaint registered as complaint case no.215/1995, Arun Vs. Ansar Ali, under section 138, N.I. Act, P.S. Brahampuri was set aside and trial court was directed to afford opportunity of hearing to parties and dispose of Delay Condonation Application under section 5 of the Limitation Act moved by the present revisionist.
On behalf of the revisionist very briefly it has been submitted that O.P. No.2 filed a complaint registered as Complaint Case No.3439/93 against the present revisionist under section 138, N.I. Act which was dismissed on 18.4.1995, thereafter, O.P. No.2 filed a fresh complaint on 28.4.1995 along with application under section 5 of the Limitation Act for condonation of delay. The learned Magistrate vide order dated 13.12.1996 after noticing the facts of the case has held that first complaint was rejected under section 256, Cr.P.C. which amounts to acquittal of the present revisionist. He also observed that application under section 5 of the Limitation Act for that reason was not maintainable, hence, he dismissed the complaint. The learned revisional court has observed that order dismissing the earlier complaint was not in accordance with law and following the principle laid down in the case of Janardhan Mohapatra vs Saroj Kumar Choudhury, 1993 Cri.L.J. 1751 has held that time for filing complaint, as prescribed in section 142(b) of the N.I. Act, can be extended by the Court with the help of application moved under section 5 of the Limitation Act, therefore, he set aside the order impugned before him and remanded the matter.
Shri Arora very briefly submits that it is the settled law that discharge under section 256, Cr.P.C. amounts to acquittal. In view of the bar contained in section 300, Cr.P.C. the second complaint could not have been tried. He further submits that the order of dismissing first complaint could have been challenged by the complainant to Higher Court, but legality of that order cannot be examined in another proceedings. He further submits that it is also settled law that complaint under section 138 of the N.I. Act has to be filed within time as prescribed by 142(b) of the N.I. Act and section 5 of the Limitation Act would not be applicable there. In support of this contention he has referred the following cases:-
1.Km. Mamta Gautam Vs. State of U.P. and another, 2000 (Suppl.) ACC 668. He places reliance on para 7 of the said judgment, which is quoted hereinbelow:
"7. There is a mendatory time under Section 142(b) of one month in filing the complaint under Section 138 Negotiable Instrument Act. That mendatory period of one month cannot be extended by an agreement between parties or by the representation of the opposite party. Therefore the contention that the complaint was not filed due to the representation of the opposite party No.2 that he will make the payment by 15.2.1996, is of no avail. Under Clause (b) of Section 142 Negotiable Instrument Act., the complaint can be filed within a period of one month from the date of service of the notice. The complaint was therefore, barred by time."
2. M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, 1999(38) ACC 858. Learned counsel for the revisionist refers para 7 and para 25 of the report.
On the strength of these two cases he submits that limitation to file complaint cannot be extended.
3. M/s. Prem Chand Vijay Kumar Vs. Yash Pal Singh and another, 2005 (52) ACC 477. He places reliance on para nos.10 & 11 of the report.
This point need not detain the Court because proviso to section 142(b) of the N.I. Act provides that time prescribed for filing the complaint can be extended by the Court if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such time. May be reference to section 5 of the Limitation Act was needless in an application moved under the said proviso enables the Court to arrive at a satisfaction whether the complainant had any sufficient cause for not filing the complaint earlier.
Now, remains the question of fact whether complainant was prevented for sufficient reason for filing the complaint within 30 days. My answer to that would be in the negative because he had earlier filed a complaint within time and it was dismissed for his non appearance under section 256, Cr.P.C. and that order was not challenged before any Court and it had attained finality. Legality of that order cannot be examined in collateral proceedings. Since section 256(1), Cr.P.C. specifically provides that for non appearance of complainant when the complaint is dismissed the accused shall be acquitted, therefore, I think on the same facts he cannot be tried for the second time in view of the bar provided by section 300, Cr.P.C.
Thus, the revision has substance. Impugned judgment is not legally sound. The revisional court has exceeded its jurisdiction and he had examined the legality of order dated 18.4.1995 because that order had attained finality and it was not impugned before him, thus, the impugned judgment cannot be sustained. Revision is allowed. Impugned judgment dated 27.1.2000 is set aside.
Office is directed to send a copy of this order to the court below for information and necessary action.
Order Date :- 17.5.2017
T. Sinha
