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CRL REV P. No. 08/2015
RADHEY SHYAM SWAMI REVISIONIST (S)
VERSUS
JAGAT SINGH SINGHI & ANR. RESPONDENT (S)
For Revisionist : Mr. Venkita Subramoniam T.R., Advocate
Mr. Pem Tshering Lepcha, Advocate
For Respondent No.1 : Mr. Jorgay Namka, Advocate
For Respondent No.2 : Mr. Sujan Sunwar, Asst. Public Prosecutor.
WITH
CRL REV P. No. 01/2016
JAGAT SINGH SINGHI REVISIONIST (S)
VERSUS
RADHEY SHYAM SWAMI & ANR. RESPONDENT (S)
For Revisionist : Mr. Jorgay Namka, Advocate
For Respondent No.1 : Mr. Venkita Subramoniam T.R., Advocate
Mr. Pem Tshering Lepcha, Advocate
For Respondent No.2 : Mr. Sujan Sunwar, Asst. Public Prosecutor.
Date: 01/07/2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
...
ORDER(ORAL)
Criminal Revision Petition No. 08/2015 has been filed arising out of
Judgment dated 27.06.2015 passed in Criminal Appeal No.05/2013 by the
Sessions Judge, Special Division-II, East Sikkim, Gangtok confirming the
judgment dated 24.06.2008 and order of sentence dated 25.06.2008
passed by the Judicial Magistrate, East Sikkim, Gangtok convicting the
petitioner of the case, Radhey Shyam Swami in Private Complaint Case
No. 18/2006.
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2. Criminal Revision Petition No. 01/2016 has been filed by the
complainant Jagat Singh Singhi arising out of the same judgment and
sentence seeking enhancement of the sentence.
3. In the present case, the arguments are heard at length of
learned Counsel representing the parties. But on the point regarding
Section 138 (b) and (c) read with Section 142 (1) (a) (b) (c) of the
Negotiable Instruments Act, 1881 (for short, "the NI Act"), it is contended
by the Counsel for the accused/applicant that the cheque was issued on
19.08.2005 as alleged and the same was presented on 20.11.2005 to the
bank, which was dishonored on 24.11.2005. The first notice was issued on
28.11.2005, Exhibit P-5, which was returned with a note that the accused
is not available to receive. The said endorsement is of 09.12.2005. Making
a pleading to that effect and on receiving with the said note on
15.12.2005, a fresh notice was issued on 17.12.2005 which was received
on 14.01.2006 with a note of refusal to accept, however, the present
complaint has been filed on 01.02.2006 which is time barred.
4. It is contended by the applicant/accused that if they failed to
make the payment of amount of money to the payee who the holder of
the cheque in due course within 15 days of receipt of the notice the
complaint must be filed as per Section 142 (1) (b) of the NI Act within a
period of one month on the date of the cause of action arises under clause
(c) to proviso of Section 138 of the NI Act otherwise taking of cognizance
by the Court is barred. Reliance has been placed on the judgment of
Hon'ble Supreme Court in the case of N. Parameswaran Unni Vs G.
Kannan and Anr. reported in (2017) 5 SCC 737.
5. On the other hand learned Counsel representing the
complainant contends that as per the proviso of Section 142 (1) (b) of N.I
Act, the cognizance of a complaint may be taken even after the prescribed
period under clause (c) of Section 138 of the NI Act if sufficient cause for Page | 2 of 4 HIGH COURT OF SIKKIM Court No.1 Record of Proceedings through Video Conferencing
not making the complaint with such period be specified. Therefore, the
cognizance can be taken even after expiry of the period from the date of
arising of cause of action. On this point evidence of the parties has not
been brought, therefore, in place of directly dealing the issue looking to
the proviso an opportunity must be given to the parties.
6. During hearing both the learned counsel have conceded that
on the said issue parties may be given liberty to lead the evidence afresh
and the judgment so passed by the Trial Court and Appellate Court may
be set aside because it do not deal with the contingency of issuance of the
first notice would be a cause of action in the light of judgment of the
Hon'ble Supreme Court in the case of MSR Leathers vs. S. Palaniappan
& Anr. reported in 2013 CRI. L.J. 1112.
7. Considering the submissions so made by counsel for both the
parties by their consent, the case is remitted back setting aside the
impugned judgment dated 24.06.2008 and order on sentence 25.06.2008
passed by the Trial Court and the judgment dated 27.06.2015 passed by
the Appellate Court.
8. Accordingly, both the Revision Petitions are disposed of with a
direction that the learned Trial Court shall record the evidence on the
point that cause of action would arise from the first notice or from the
second notice and decide the said issues in accordance with law. It is
made clear that learned counsel for the parties are not entitled to lead the
evidence on other issues and the Trial Court shall decide the other issues
afresh on the basis of evidence already adduced by the parties.
9. In view of the foregoing observation both these Revision
Petitions are disposed of. Private Complaint No. 18/2006 be restored to its
original file before the Trial Court and the said complaint be decided within
a period of three months from the date of appearance of the parties.
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10. Parties present in the Court are agreed to appear before the
Trial Court on virtual mode on 16.08.2021.
Chief Justice
jk/avi
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