Soumen Sarkar vs State Of West Bengal & Anr
2022 Latest Caselaw 2981 Cal

                  IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION

Before:

The Hon'ble Justice Ananda Kumar Mukherjee

                         C.R.R. 863 of 2014
                               With

             CRAN 5 of 2018 (Old CRAN 3376 of 2018)

             CRAN 7of 2019 (Old CRAN 4307 of 2019)

                           CRAN 9 of 2022

                           Soumen Sarkar

                                  -Vs-

                       State of West Bengal & Anr.



For the Petitioner:           Mr. Subrata Bhattacharya, Adv.
                              Mr. Indranuj Dutta, Adv.


For the O.P. No. 2.:          Mr. Ayan Bhattacharya, Adv.



Heard on :                    06.05.2022.



Judgment on:                   19.05.2022.



          Ananda Kumar Mukherjee, J. :-

1.    This revisional application under section 482 of the Code of Criminal

Procedure, 1973 has been filed by the petitioner principally against Jagannath

Dubey, opposite party no. 2 praying for quashing of proceedings and impugned

order dated 25.7.2013 passed by Learned Additional Chief Judicial Magistrate,
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Raghunathpur, District Purulia, in Complaint Case No. 2 of 2013 under section

138 of the Negotiable Instrument Act.

2.    In gist, the facts of the complaint case is that opposite party no. 2 filed a

complaint under section 138 of the Negotiable Instrument Act against the

petitioner before the court of Learned Additional Chief Judicial, Raghunathpur,

Purulia, alleging that the petitioner borrowed a some of money from opposite

party no. 2 for his business and in discharge of his liability the petitioner

issued two cheques of Rs.1,50,000/- and Rs.2,20,00/- in favour of the opposite

party no. 2 drawn on Axis Bank Limited, Durgapur Branch. The payee,

deposited the cheques with the State Bank of India, Raghunathpur Branch for

encashment but both the said cheques were dishonoured due to insufficiency

of fund. A complaint was lodged against the petitioner under section 138 of the

Negotiable Instrument Act where it was disclosed that due to illness of the

petitioner from 15.5.2012 to 11.11.2012 he could not make any contact with

the petitioner and on 12.11.2012 he issued a notice to the petitioner

demanding repayment of the amount in terms of section 138 of the Negotiable

Instrument Act. It was further stated that due to his illness and medical

treatment the opposite party no. 2 was prevented from filing the case against

the petitioner. Strange enough cognizance was not taken by learned Magistrate

on 15.1.2013 but summons were issued. Thereafter on 4.6.2013 a petition was

filed by the complainant for condonation of delay.

3.    According to the revisionist there has been material suppression of facts

in the complaint and the complaint has been lodged beyond the statutory
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period under section 142 (a) of the Negotiable Instrument Act, as such the

same is not maintainable. The petitioner alleged that learned Magistrate on the

basis of the complaint lodged by opposite party no. 2 took cognizance of the

offence under section 138 of N.I. Act and issued process to the petitioner. On

19.4.2013 petitioner filed an application for his discharge from the case. In the

meantime, on 4.6.2013 the opposite party no. 2 filed an application under

section 5 of the Limitation Act praying for condonation of delay in filing of the

case of 15.6.2013.

4.    After hearing both parties, the application dated 19.4.2013 filed by the

petitioner for discharge was rejected on 25.7.2013. It was observed that "the

very fact of issuance of summons condones the delay in filing the case." This

hypothetical   observation   does   not   dispense   the   mandatory   statutory

requirement of condonation of delay or taking cognizance of an offence.

5.    Being aggrieved the present application has been filed by the accused

petitioner on the grounds inter alia, that the cognizance taken by the learned

Magistrate is bad in law and the proceeding is not maintainable as per the

provisions under section 138(b) and 142 (b) of the Negotiable Instrument Act. It

is urged that learned Magistrate has committed error of law in taking

cognizance as the complainant issued the second notice after the lapse of

statutory period which is not maintainable under the provisions of section 142.

Furthermore the complaint case filed by opposite party no. 2 is barred by

limitation and no cognizance of the offence could be taken contrary to the

provision under section 142 of the Negotiable Instrument Act. It is the case of
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the petitioner that learned Magistrate took cognizance of the offence before

considering the petition for condonation of delay and thereby the proceeding in

the complaint case is not maintainable and is liable to be quashed.

6.      The petitioner has filed a supplementary affidavit enclosing photo copy of

legal notice issued to him by the complainant/opposite party no. 2 dated

4.6.2012 and order dated 15.1.2013 passed by Learned ACJM Rampurhat,

whereby without condonation of delay and taking cognizance of the offence

summons were issued to the petitioner.

7.      Learned advocate for the petitioner argued that the present application

has been filed not only against the impugned order of learned Magistrate dated

25.7.2013 whereby the prayer for discharge was rejected but he has assailed

the entire proceeding as it is barred by limitation and the cognizance taken in

the case without condonation of delay is bad in law and cannot be proceeded

with.

8.      Learned advocate for the petitioner buttress his argument by placing

reliance upon the decisions in the case of - (I) Subodh S. Salaskar Vs.

Jayprakash M. Shah and Anr.; (2008) 13 Supreme Court Cases 689.

(II) Dipak Majumder Vs. Swapan Poddar; C.R.R 154 of 2018, a unreported

judgment of learned Single Judge of this court.


(III) A.K. Maheshwary Vs. State of West Bengal; (2012) 2 C Cr LR (Cal) 850 and


(IV) Bangur Finance Limited Vs. Tejesh Ranjan Ghosh;         2007 (2) CHN page

893.
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9.    Learned advocate for the petitioner referring the decision in the case of

Subodh S. Salaskar Vs. Jayprakash M. Shah and Anr; (2008) 13 Supreme

Court Cases 689, submitted that a case for dishonour of cheque under section

138   of the N.I Act was filed on 20.4.2001. Subsequently, an application to

amend the complaint petition was filed by the complainant for adding offence

under section 420 of IPC which was allowed on 14.8.2001. The accused filed

an application for discharge on the ground that the complaint was barred by

limitation but the application was dismissed. The revisional application filed

before the Learned Additional Sessions Judge as well as criminal writ petitions

were dismissed. The accused preferred an appeal before the Hon'ble Supreme

Court where a question arose whether the proviso appended to section 142 (b)

of the Negotiable Instrument Act, inserted by the amendment Act of 2002, is

retrospective in operation. It was held by the Hon'ble Supreme Court that

delayed complaint should not have been allowed. In the said appeal it was

further held that, "Ex facie, it was barred by limitation. No application for

condonation of delay was filed. No application for condonation of delay was

otherwise maintainable. The provisions of the Act being special in nature, in

terms thereof the jurisdiction of the court to take cognizance of the offence

under section 138 of the Act was limited to the period of thirty days in terms of

the proviso appended thereto. Parliament only with a view to obviate the

aforementioned difficulties on the part of the complainant inserted proviso to

clause (b) of section 142 of the Act in 2002. It confers a jurisdiction upon the

court to condone the delay. It is, therefore, a substantive provision and not a
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procedural one. The matter might have been different if the Magistrate could

have exercised its jurisdiction either under section 5 of the Limitation Act,

1963 or section 473 of the Code of Criminal Procedure, 1976. The provisions of

the said Acts are not applicable. In any event no such application for

condonation of delay was filed. If the proviso appended to clause (b) of section

142 of the Act contained a substantive provision and not a procedural one, it

could not have been given a retrospective effect. A substantive law, as it is well

settled, in absence of any express provision, cannot be given a retrospective

effect or retroactive operation".

10.   It is to be borne in mind that the petition of complaint in the case of

Subodh S. Salaskar Vs. Jayprakash M. Shah was filed on 20.4.2001 that is

before the proviso to clause (b) of section 142 of the N.I. Act was introduced by

amendment in the year 2002. It is true that learned Magistrate has no

jurisdiction to take cognizance of any offence under section 138 if the petition

is barred by limitation and the process of issuance summons also becomes

illegal as he has no jurisdiction to proceed with such matter.

11.   The next case relied on behalf of the petitioner is Dipak Majumder Vs.

Swapan Poddar; (C.R.R 154 of 2018), were the learned Single Judge of this

court also placing reliance upon the ration in the case of Subodh S. Salaskar

Vs. Jayprakash M. Shah, set aside the judgment in a criminal appeal were the

learned Additional Sessions Judge failed to consider the issue of limitation in a

case arising out of section 138 of the N.I. Act and directed the learned Judge of
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the First Appellate Court to adjudicate the issue as to whether the appeal is

barred by limitation or not.

12.   In A.K. Maheshwary Vs. State of West Bengal; (2012) 2 C Cr LR (Cal)

850, the cheque issued for repayment of debt was dishonoured by the bank

due to insufficiency of fund. On 9.9.1999 petitioner issued a notice which was

served upon the respondent by registered post but no information of service

was received. After correspondence it was learn from the post office that the

notice was served upon the respondent on 15.9.1999. A complaint under

section 138 of the N.I. Act was filed by the complainant through his power of

attorney holder within one month. The trial court convicted the respondents for

the offence and sentenced him to imprisonment. Being aggrieved the

respondent filed a revisional application before the Additional Sessions Judge

and the revisional court set aside the judgment of conviction of the trial court.

Against this order of acquittal a revisional application was filed before the High

Court. On considering the matter involved Hon'ble Court held that there was

no illegality in the order impugned as the cognizance taken in the case was

barred by limitation. In catena of decisions by the Hon'ble Court it has been

held that in a case under section 138 of the Negotiable Instrument Act the

interdict incorporated in section 142 of the N.I. Act that "no court shall take

cognizance of any offence unless the complaint is made within one month of

the date on which the cause of action arises" has to be followed. The same

principal has been set out in the case of Bangur Finance Limited Vs. Tejesh

Ranjan Ghosh 2007 (2) CHN page 893, which has been relied upon by the

petitioner.

13. Mr. Ayan Bhattacharya learned advocate for the opposite party no. 2

argued that the petitioner has filed this application for quashing of proceeding

where he has challenged the order dated 25.7.2013 where the prayer for

discharge of the petitioner was dismissed. It is contended that the decisions

which have been relied upon by the petitioner in the case of Subodh S.

Salaskar, A.K. Maheshwary and Bangur Finance Limited are all cases where

complaints were lodged under section 138 of the N.I. Act prior to the

amendment of the Act in 2002 which incorporated proviso to section 142 (b) of

the Negotiable Instrument Act. It is argued that on the introduction and the

said proviso, the concerned courts have the jurisdiction to take cognizance of

the offence on a complaint which may be filed after the prescribed period if the

complainant satisfies the court that he had sufficient cause for not making a

complaint within such period.

14. In support of his argument learned advocate for the contesting opposite

party no. 2 relied upon a decision in the case of Pawan Kumar Ralli Vs.

Maninder Singh Narula; 2014 Vol 15 Supreme Court Cases 245, where the

Hon'ble Supreme Court held that when the issue of limitation was raised for

the first time before the High Court, High Court ought to have dealt with that

issue on merit as per proviso to section 142 (b) of the N.I. Act, 1881. The said

proviso was inserted in the year 2002 with a legislative intent to overcome the

technicality of limitation period only with a view to obviate the difficulties on

the part of the complainant, parliament inserted the said proviso to section 142

(b) of the N.I. Act, which confers a jurisdiction upon the court to condone the

delay.

15. Having considered the facts and circumstances involved in this case and

the argument advance by learned advocates for the parties, it appears to me

that the moot question which needs to be resolved during hearing is whether

the order passed by learned Magistrate, supposed to have taken cognizance of

the offence is tenable under the provisions of section 138 and 142 of the

Negotiable Instrument Act. It may be gathered from the impugned order dated

25.7.2013 that two cheques of Rs.1,50,000/- and as Rs.2,20,000/- were drawn

by the petitioner on 2.5.2012 in favour of opposite party no.2. The cheques

were presented for encashment but were dishonoured due to insufficiency of

fund. On the ground of illness the complainant issued notice to the accused

petitioner only on 12.11.2012 demanding payment of the cheque amounts. The

complaint was lodged on 15.1.2013. This case was filed after amendment of the

N.I. Act in 2002. Therefore the decisions in the case of Subodh S. Salaskar,

A.K. Maheshwary and Bangur Finance Limited would not apply to the facts

and circumstances of this case. In the case of Dipak Majumder Vs. Swapan

Poddar (CRR 154 of 2018), learned Single Judge of this court referring to the

substantive provision incorporated in proviso to clause (b) of section 142 of the

Negotiable Instrument Act by way of amendment, observe that the Appellate

Court failed to consider the issue of limitation while disposing of the Appeal,

therefore, the judgment passed in the Criminal Appeal was set aside and the

learned Judge in the court of appeal was directed to adjudicate the issue as to

whether the appeal is barred by limitation or not and pass a reasoned order on

the basis of the submissions made by learned advocates.

16. In Pawan Kumar Ralli Vs. Maninder Singh Narula, relied on behalf of

the opposite party no. 2, the Hon'ble Supreme Court held that the issue of

limitation raised for the first time before the High Court ought to have been

dealt with on merit as per proviso under section 142 (b) of the N.I. Act. It is

therefore necessary that before taking cognizance of the offence, the point of

limitation if raised in the case should be decided at the very inception. It is

apparent that the complaint was filed long after the lapse of the statutory

period of thirty days from the date of cause of action that is the expiry of fifteen

days from the date of service of the notice as laid down in section 138 (c) of the

Negotiable Instrument Act. In section 142 (1)(a) it has been laid down that

notwithstanding anything contained in the Code of Criminal Procedure, 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 a cheque and section 142 (1)(b) provides that such

complaint is to be made within one month of the date on which the cause of

action arises under clause(c) of the proviso to section 138. In the instant case

learned ACJM, Raghunathpur has acted beyond his jurisdiction by issuing

summons to the petitioner without even taking cognizance of the offence,

contrary to the provision laid down in the Act, without having any occasion of

being satisfied for condoning the delay. Taking of cognizance on satisfactory

condonation of delay are statutory requirements which cannot be presumed on

issuance of process to accused. The impugned order is bad in law and is not

tenable under such circumstances. Therefore, the order dated 15.1.2013 and

all the successive orders is proceeding are bad in law and are set aside.

17. It is to be borne in mind that with the amendment of section 142 in the

year 2002, a proviso has been introduced which lays down that cognizance of a

compliant 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 of thirty days. There is material on record to

indicate that a complaint has been lodged under section 138 of the N.I. Act

against the petitioner for dishonour of his cheques and for which notice has

already been issued to him demanding repayment. It is also to be seen if notice

was issued to the drawer within thirty days of dishonour of the cheques in

compliance with section 138 proviso (b) of the N.I. Act.

18. Learned Magistrate shall provide an opportunity to the complainant to

exercise his legal right under the proviso to section 142 (b) of the N.I. Act to

satisfy the court if he had sufficient cause for not filing the complaint within

statutory time. After considering such grounds learned Magistrate shall

proceed in accordance with the law and record an order if cognizance can be

taken fulfilling the statutory provisions.

19. The revisional application is therefore allowed. Interim order if any

stands vacated. Let a copy of this judgment be sent to the court of Learned

ACJM, Raghunathpur, Purulia for information and necessary compliance.

Complainant shall appear before the concerned court within a forthnight.

20. Urgent Photostat certified copy of this judgment, be supplied to the

parties if applied for, maintaining all formalities.

(Ananda Kumar Mukherjee, J.)