Hemant Kumar vs Ramnarayan Dubey
2022 Latest Caselaw 7218 MP

                               1
        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                        BEFORE
     HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                     ON THE 12th OF MAY, 2022
             MISC. CRIMINAL CASE No. 16678 of 2022

       Between:-
       HEMANT KUMAR S/O MOHANLAL ,
       AGED      ABOUT   56    YEARS,
       OCCUPATION: BUSINESS NEAR UCO
       BANK BIRLA NAGAR PS HAZIRA
       (MADHYA PRADESH)

                                                      .....PETITIONER
       (BY SHRI F.A.SHAH-ADVOCATE)

       AND

       RAMNARAYAN DUBEY S/O BABULAL
       DUBEY , AGED ABOUT 58 YEARS,
       51/595 PAWAN VIHAR NEAR JANAK
       HOSPITAL JINSI NALA NO 2 LASHKAR
       (MADHYA PRADESH)

                                                   .....RESPONDENTS
       (BY SHRI V.K.JHA- ADVOCATE )
     Th i s application coming on for admission this day, the court
passed the following:
                                ORDER

This application under Section 378(4) of Cr.P.C. has been filed by the complainant seeking leave to file appeal against the judgment dated 21.2.2022 passed by the Judicial Magistrate First Class, Gwalior, in SC NIA No.6600419/2016 whereby his complaint under Section 138 of the Negotiable Instruments Act has been dismissed on the ground that same has

been filed within 15 days from the date of receipt of notice to the accused.

Learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey and another, (2015) 1 SCC (Cri) 226 para 41 wherein it has been held as under:-

"42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section

138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period. Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly."

and submitted that learned trial Court without giving any liberty to

the petitioner to file a fresh complaint, dismissed his complaint, and therefore, in view of the decision of the Apex Court a liberty to file fresh complaint before the trial Court may be given.

Learned counsel for the respondent opposed the prayer. Considering the submissions so advanced and the decision of the Apex Court in the aforesaid case, this petition is disposed of with a liberty to the petitioner to file a fresh complaint before the trial Court on the same cause of action.

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

MADHU SOODAN PRASAD 2022.05.12 17:26:27 +05'00'