Crl. O.P. No.6944 of 2009,M.P. No.1 of 2009

18th December, 2014.

Petitioner Counsel: Mr. N. MANOKARAN
Respondent Counsel: Mr. V.S. KESAVAN

Cases Cited:
Sarah Mathew Vs. Institute of Cardio Vascular Diseases, 2014 ALL SCR 309=(2014) 2 SCC 62 [Para 6,13,15]
Vanka Radhamanohari Vs. Vanka Venkata Reddy, (1993) 3 SCC 4 [Para 9,12]
State of Madhya Pradesh Vs. Pradeep Kumar & Anr., 2000 (IV) CTC 434 [Para 14]
R.Kanthimathi & Ors. Vs. Bank of India, Dharmapuri Branch, 2007 (4) CTC 524 [Para 16]

JUDGMENT

JUDGMENT :- The extent of the power of a Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint for an offence under Section 138 of The Negotiable Instruments Act has come up for consideration in this case. The petitioner is the second accused in C.C.No.336 of 2007 on the file of the learned Judicial Magistrate, Dharapuram. The first accused is a company by name M/s.Moulana Leathers, of which, the petitioner is a partner. The respondent has filed the said case alleging that the petitioner and the first accused have committed an offence punishable under Section 138 of The Negotiable Instruments Act. Challenging the same, the petitioner is before this Court with this petition.

2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and I have also perused the records carefully.

3. The only ground raised in this petition is that the order of the learned Magistrate taking cognizance of the offence on the private complaint filed by the respondent is barred by limitation. The learned counsel for the respondent would submit that, of course, there was delay in presentation of the complaint by one day but the lower Court, according to the learned counsel, has impliedly, condoned the delay and thus the order taking cognizance is not illegal.

4. I have considered the above submissions.

5. Factually, the statutory notice under Section 138 of The Negotiable Instruments Act issued by the respondent was received by the petitioner on 26.05.2005. As per Section 138 of The Negotiable Instruments Act, though the period of limitation expired on 11.07.2005, the complaint was admittedly presented before the learned Magistrate only on 12.07.2005. It was returned by the learned Magistrate repeatedly and finally cognizance was taken on 22.01.2007.

6. Before going into further facts of the case, let us have a quick look into the legal position. Prior to the Amendment Act 55 of 2002, which came into force on 06.02.2003, for condonation of delay in taking cognizance of an offence under Section 138 of The Negotiable Instruments Act on a private complaint, there was no enabling provision in The Negotiable Instruments Act. Indisputably, Section 5 of the Limitation Act is also not applicable to criminal proceedings except for appeals or revisions, for which, express provisions have been made in Articles 114, 115, 131 and 132 of the said Act. In respect of other offences, Section 473 of the Code of Criminal Procedure enables the Magistrate/Court to condone the delay. Why such a provision was introduced in the Code of Criminal Procedure should be taken note of. Chapter XXXVI was inserted in the Code of Criminal Procedure, prescribing limitation period for taking cognizance and making provisions for extension of period of limitation (vide Section 473 Cr.P.C.) with a view to quicken the prosecution of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. This was done on the recommendation of the Law Commission of India in its report and the recommendation of the Joint Parliamentary Committee. As has been observed by the Honourable Supreme Court in Sarah Mathew Vs. Institute of Cardio Vascular Diseases ((2014) 2 SCC 62) : [2014 ALL SCR 309], the effort of the legislature was to make the criminal justice system more orderly, efficient and just by providing appropriate period of limitation for certain offences.

7. It is with a similar object, by Amendment Act 55 of 2002, proviso to Section 142 of The Negotiable Instruments Act was introduced, enabling a Magistrate to take cognizance of an offence under Section 138 of The Negotiable Instruments Act after the prescribed period of limitation, if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period.

8. But one could perceive the different expressions used in Section 473 of the Code of Criminal Procedure and the proviso to Section 142 of The Negotiable Instruments Act. The difference in language used in these two provisions makes all the difference in their respective application. It also needs to be noted that the language used in Section 5 of the Limitation Act and the proviso to Section 142 of The Negotiable Instruments Act are one and the same whereas it is different in Section 473 Cr.P.C. Now let us have a look into these three provisions, which read as follows:

473 Cr.P.C. - Extension of period of limitation in certain cases:- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

Section 5 of the Limitation Act - Extension of prescribed period in certain cases:- Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

Section 142 of The Negotiable Instruments Act Cognizance of Offences: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) 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 the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause(c) of the proviso to section 138.

Provided that the cognizance of a complaint 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.

9. The Honourable Supreme Court in Vanka Radhamanohari Vs. Vanka Venkata Reddy ((1993) 3 SCC 4) has noted the basic difference between Section 5 of the Limitation Act and Section 473 of the Code of Criminal Procedure. In para 6 of the said judgment, the Honourable Supreme Court has held as follows:

"There is a basic difference between Section 5 of Limitation Act and Section 473 of the Criminal Procedure Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of the delay whereas Section 473 Cr.P.C. enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay".

10. The Honourable Supreme Court underlined the difference in language between Section 5 of the Limitation Act and Section 473 Cr.P.C., inasmuch as in Section 5 of the Limitation Act, the language used is as follows:

"if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making an application within such period"

whereas Section 473 Cr.P.C. states as follows:

"if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice".

11. The second part viz., "that it is necessary so to do in the interest of justice" is not found in Section 5 of the Limitation Act. The first part of Section 473 Cr.P.C. speaks of condonation of delay on proper explanation made by the applicant whereas the second part of Section 473 Cr.P.C. makes it incumbent on the Court to decide whether it is necessary in the interest of justice to condone the delay. It is because of this difference in language, the Honourable Supreme Court in the said judgment held that so far as Section 473 Cr.P.C. is concerned, even in the absence of any explanation offered by the applicant for the delay, it is incumbent upon Court to condone or ignore such delay in the interest of justice.

12. Now, let us see the language used in proviso to Section 142 of The Negotiable Instruments Act, which is more or less similar to Section5 of the Limitation Act. Here also, the Court can take cognizance only when the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. The language "it is necessary to do so in the interest of justice" as it is found in Section 473 Cr.P.C. is not found in the proviso to Section 142 of The Negotiable Instruments Act. This makes the difference between the proviso to Section 142 of The Negotiable Instruments Act and Section 473 Cr.P.C. As we have already seen, the proviso to Section 142 of The Negotiable Instruments Act and Section 5 of the Limitation Act are in pari materia. Therefore, as held by the Honourable Supreme Court in Vanka Radhamanohari Vs. Vanka Venkata Reddy ((1993) 3 SCC 4), so far as the offence under Section 138 of The Negotiable Instruments Act is concerned, if there is a delay in presenting the complaint, the same requires to be satisfactorily explained only by the complainant and the Court cannot condone such delay in the interest of justice as it could be done under Section 473 Cr.P.C. Therefore, it is absolutely necessary for the Court to examine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Section 473 Cr.P.C.

13. In Sarah Mathew Vs. Institute of Cardio Vascular Diseases ((2014) 2 SCC 62) : [2014 ALL SCR 309], the Honourable Supreme Court has held that for computing the period of limitation, the crucial date shall be the date of presentation of the complaint. If the date of presentation of the complaint is beyond the period of limitation prescribed under Section 142 of The Negotiable Instruments Act, as I have already concluded, it is absolutely necessary for the complainant to explain such delay by showing sufficient cause. In the case on hand, admittedly, no such petition was filed and no such explanation was offered. But, the lower Court, without noticing that there was a delay in presenting the complaint, has inadvertently taken cognizance. Had the lower Court noticed the delay, it would have called upon the respondent herein to explain the delay. Thus there was some error on the part of the lower Court.

14. Now the question is "whether, for the inadvertent error committed by the lower Court, the respondent should be allowed to suffer?" In this regard, I may refer to the observations of the Honourable Supreme Court in State of Madhya Pradesh Vs. Pradeep Kumar and another (2000 (IV) CTC 434), wherein in para 12, the Honourable Supreme Court has held as follows:

"12. It is true that the pristine maxim "Vigilantibus Non Dormientibus Jura Subveniunt" (Law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine."

15. Similar view has been expressed by the Honourable Supreme Court in Sarah Mathew Vs. Institute of Cardio Vascular Diseases ((2014) 2 SCC 62) : [2014 ALL SCR 309] also and para 39 of the said order reads as follows:

"39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari. The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus jura subveniunt. Chapter XXXVI Cr.P.C. which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. Court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles."

16. In view of the principles stated in these judgments, it is necessary for this Court to afford an opportunity to the respondent herein to go before the lower Court and to file a petition seeking condonation of the delay by showing sufficient cause. Similar view has been taken by this Court in R.Kanthimathi and 2 others Vs. Bank of India, Dharmapuri Branch (2007 (4) CTC 524). In view of the said settled position, I am of the view that in the instant case, the order of the learned Magistrate taking cognizance deserves to be set aside and the matter needs to be remanded back to the lower Court with a liberty to the respondent herein to file an appropriate petition seeking condonation of delay by showing sufficient cause. Thereafter, it may be appropriate for the lower Court to consider the same and proceed further in accordance with law.

17. In the result, the Criminal Original Petition is allowed and the order of the learned Magistrate taking cognizance on the complaint in C.C.No.336 of 2007 is set aside. The respondent herein shall file a miscellaneous petition before the lower Court with an affidavit seeking condonation of delay by showing sufficient cause and the lower Court shall consider the same and proceed with the case in accordance with law as indicated above. Consequently, connected miscellaneous petition is closed.

Petition allowed.