IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.4.2008 CORAM: THE HONOURABLE MR.JUSTICE R.REGUPATHI Crl.O.P.No10189 of 2006 C.K. Mahalingam .. Petitioner Versus R. Palanisamy .. Respondent Prayer: Petition filed under Section 482 Cr.P.C seeking for a direction to quash the proceedings in C.C.No.882 of 2006 pending on the file of learned Judicial Magistrate No.II, Coimbatore. For Petitioner : Mr.C.D. Johnson For Respondent : Mr.V. Nicholas O R D E R
The petitioner is an accused for an offence punishable under Sec.138 of Negotiable Instruments Act. A complaint has been filed on 16.2.2006 and as there was a delay of 620 days in preferring the complaint, by invoking Sec.5 of Limitation Act, a petition to condone the delay has also been filed therewith, wherein, it has been stated that though originally the complaint was filed as early as on 7.6.2004, the same was returned for want of certain corrections and on being taken back, it was misplaced in the office due to mix-up with other papers, therefore, the delay has occurred.
2. By Order dated 16.2.2006, the learned Magistrate has directly taken the complaint on file, recorded the sworn statement and issued process to the accused. Questioning the correctness of the procedure adopted by the learned Magistrate in taking the complaint on file, the present petition has been filed.
3. The learned counsel for the petitioner submits that though it is stated in the petition that the complaint was presented before the learned Magistrate on 7.6.2004, there is no endorsement of the learned Magistrate for returning the complaint. When there is a specific provision under the Special Enactment itself viz., Negotiable Instruments Act to condone the delay in preferring a complaint, strangely, petition under Sec.5 of the Limitation Act was filed. Moreover, the reasons stated in the present petition for condoning the delay in re-presenting the complaint are not true as there is no material at all to substantiate that the complaint had been filed on the earlier occasion i.e., on 7.6.2004. The learned Magistrate has, without even passing orders on the petition for condoning the delay in re-presenting the complaint, directly taken the complaint on file on the date of filing itself and further proceeded with the matter. Such exercise on the part of the learned Magistrate is illegal and improper.
4. Per contra, the learned counsel for the respondent/complainant by stating that on 7.6.2004 itself the complaint was filed; that the same was returned by the learned Magistrate to carry out some corrections; and that, since it was misplaced along with other bundles by the counsel, there was a delay in re-presentation, whereupon, the petition to condone delay has been filed, would submit that great hardship would be caused if the petition is ordered, quashing the proceedings.
5. I have perused the materials available on record and heard the submissions made on either side. It appears that a cheque bearing No.071679 dated 1.4.2004 was dishonoured on 2.4.2004, resulting in issuance of a legal notice dated 20.4.2004. Subsequently, a complaint has been preferred for the offence punishable under Sec.138 of Negotiable Instruments Act. On a careful perusal of the complaint, I find that the date of filing of the complaint has not been stated and the Court seal reflects the date as 16.2.2006. Thus, there is no proof at all for filing the complaint on 7.6.2004. An endorsement by the learned Magistrate is not available to substantiate that the complaint filed on the earlier occasion was in fact returned for want of some corrections.
6. It appears that actually, the complaint has been filed directly on 16.2.2006 and a petition to condone the delay in re-presenting the complaint has been filed under Sec.5 of the Limitation Act.
7. Negotiable Instruments Act is a Special Enactment and for condoning the delay in re-presenting the complaint, the provision available is Sec.142(b) thereof, which reads as follows:
142. Cognizance of offences:
(a) …..
(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 back by the Court after the prescribed period, if the complainant satisfied the Court that he had sufficient cause for not making a complaint within such period”.
8. Admittedly, a petition has not been filed under the aforesaid provision of the Negotiable Instruments Act, but under Section 5 of Limitation Act, which reads as follows:
5. Extension of prescribed period in certain cases:
Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation: – A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”
9. On a perusal of the records, I find that no order has been passed by the learned Magistrate in the petition filed for condoning the delay in re-presenting the complaint. It appears that after receiving the petition for condoning the delay along with the complaint, the learned Magistrate has directly recorded the sworn statement and proceeded further by issuing summons. The special Enactment provides certain procedure to be followed and such procedure has to be strictly adhere to at each and every stage. Soon after receiving the cheque, the person, who is holding the cheque, must strictly adhere to the limitation prescribed under the Act. Though a specific provision has been included in the Act for condoning the delay in re-presenting the complaint, such procedure has not been followed in the case on hand. It appears that the learned Magistrate, without application of mind and without following the
R. REGUPATHI,J,
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procedure prescribed under the special enactment, has erroneously proceeded with the case. That being so, the cognizance taken by the learned Magistrate is without any sanction of law; therefore, I am of the considered opinion that it is a fit case to quash the proceedings.
10. Accordingly, the proceedings in C.C.No.882 of 2006 pending on the file of learned Judicial Magistrate No.II, Coimbatore, stand quashed and the petition is allowed.
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The Judicial Magistrate No.II, Coimbatore
Crl.O.P.No.10189/2006