ORDER
T. Ch. Surya Rao, J.
1. Since common questions of law and fact are involved and as the parties are same, these three Revision Cases can be disposed of together.
2. The petitioners assail three orders all dated 17.7.2000 passed by the learned XI Metropolitan Magistrate, Secunderabad, in Crl. M.P. No. 568/2000; Crl. M.P. No. 567/2000, and Crl. M.P. No. 569/2000 in C.C. No. 680/1995; C.C. No. 679/1995, and C.C. No. 677/ 1995 respectively. The petitioners are the accused in all these criminal cases filed against them by the first respondent herein under Section 138 of the Negotiable Instruments Act (‘the N.I. Act’ for brevity). These complaints were filed originally before the Metropolitan Magistrate, Court No. 9, Gheekanta, Ahmedabad in Gujarath State.
3. It is alleged in these complaints, inter alia, that the complainant supplied agro-chemicals to the accused as per the business dealings between them inter se and the accused became indebted in a sum of Rs. 21,79,925.20 ps. and in part settlement thereof the accused issued three cheques bearing No. 833414 dated 2.9.1991 for a sum of Rs. 6 lakhs, No. 833468 dated 14.9.1991 for a sum of Rs. 9 lakhs and No. 833470 dated 7.9.1991 for a sum of Rs. 6 lakhs, drawn on State Bank of India, A.D.B., Anantapur Branch. It is further averred that those cheques were dishonoured when presented to the complainant’s Banker, with the endorsement “insufficient funds” and when the complainant, therefore, issued requisite legal notices demanding payment of the amounts covered by the dishonoured cheques, having received the said notices, the accused failed to pay the amounts within the stipulated time of 15 days. Hence, the complainant filed three different complaints, as aforesaid, before the Court of Magistrate at Ahmedabad.
4. The accused thereupon, after having put in their appearance, filed applications in all these three cases seeking dismissal of the complaints for want of necessary territorial jurisdiction or to return the complaints for presenting the same before the appropriate Court. Those applications were resisted by the complainant. The learned Magistrate by his order dated 6.3.1995 directed all these three complaints to be returned. On an application filed by the complainant requesting the Court to grant sufficient time to present the complaints before the appropriate Court, the learned Magistrate allowed that application granting time upto 18.4.1995. Thereupon, the complainant presented all these three complaints before the Court of XI Metropolitan Magistrate at Secunderabad on 17.4.1995.
5. As aforesaid, the accused filed petitions before the Court seeking discharge on the premise that the complaints filed before the Court being the fresh complaints were barred by limitation and under the impugned orders, the learned Magistrate rejected the said contention on the premise that the time having been granted for presenting the complaints by the Court at Ahmedabad till 18.4.1995 and the complaints having been presented before the Court of XI Metropolitan Magistrate at Secunderabad on 17.4.1995 they were well within the time. The petitioners are now assailing the said orders as aforesaid.
6. Mr. C. Padmanabha Reddy, learned Senior Counsel appearing for the petitioners, contends that the original complaints, which were directed to be returned by the Court at Ahmedabad, were not presented before the Court of XI Metropolitan Magistrate at Secunderabad, and instead they drafted fresh complaints in English and filed them before the Court and, therefore, the complaints should be deemed to have been filed for the first time on 17.4.1995. The learned Senior Counsel further contends that when the complaints were ordered to be returned by the Court at Ahmedabad on 6.3.1995 were re-presented on 17.4.1995, therefore, they were clearly barred by time. The contention of the learned Senior Counsel thus appears to be two-fold.
7. Apropos the first contention, the original complaints filed before the Court of Magistrate, Court No. 9, Ahmedabad, were obviously drafted in Gujarathi language. The complaints presented before the Court of XI Metropolitan Magistrate at Secunderabad were drafted in English. Of course, there is no gainsaying that they are the translated versions of the original complaints. The original complaints were annexed to the translated complaints filed before the Court of XI Metropolitan Magistrate at Secunderabad. It is not as though fresh complaints were filed before the XI Metropolitan Magistrate as Secunderabad. Under these circumstances, the learned Magistrate rightly repelled the contention of the petitioner that it was a case of filing the complaints afresh. I see no compelling reason to interfere with the said finding of the learned Magistrate.
8. As regards the other contention, certain admitted facts are required to be set forth for brevity and better understanding of the matter. Causes of action arose in these three cases on 9.1.1991, 30.10.1991 and 16.10.1991 respectively. The complaints should have been filed on or before 8.1.1991, 29.11.1991 and 15.11.1991 respectively. The complaints in fact were filed on 23.10.1991, 23.11.1991 and 23.10.1991 by which dates obviously those complaints were filed well within the period of limitation, that is 17 days, 7 days and 22 days respectively ahead of the last dates of limitation. All these three complaints were ordered to be returned for presentation before the proper Court having territorial jurisdiction on 6.3.1995. They were presented before the Court of XI Metropolitan Magistrate at Secunderabad on 17.4.1995. That means, one month 11 days after the date of return of those complaints. And nearly three and half years after the causes of action arose.
9. On these undisputed facts, it is now got to be seen as to whether or not the complaints presented before the Court of XI Metropolitan Magistrate are within the period of limitation.
10. Section 142 of the N.I. Act ordains that no Court shall take cognizance of the offence punishable under Section 138 of the N.I. Act except upon a complaint in writing made by the payee within one month of the date on which the cause of action arises in accordance with Clause (c) of proviso to Section 138 of the N.I. Act. Initial presentation of the complaints in writing in these cases was well within the time as herein above set out. On the ground of lack of territorial jurisdiction the complaints in these cases have been ordered to be returned. Section 201 of the Code enables the Court, which has no jurisdiction, to return the complaint for presentation to the proper Court by making an endorsement to that effect. Accordingly, it has been done in these three cases. The legality or otherwise of the order is not germane for consideration in these cases. Inasmuch as part of the causes of action have arisen within the territorial limits of the Court at Ahmedabad, the Court has jurisdiction to entertain these complaints as per the judgment of the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr., . However, as the judgment of the Apex Court since not rendered by then interpreting the law in its own way, the Court at Ahmedabad directed these complaints to be returned for presentation before the proper Court, as aforediscussed. On the subsequent applications filed by the complainant, the Court has extended the time for presentation of the complaints till 18.4.95. Whether the Court can extend the time or not is yet another moot question.
11. Obviously, by the date of presentation of these complaints before the Court of XI Metropolitan Magistrate at Secunderabad, it is beyond the period of limitation contained in Section 142 of the N.I. Act. Unless the whole of the period during which these complaints have been pending adjudication before the Court at Ahmedabad is excluded, although the complaints were originally presented well within the time before the Court at Ahmedabad for all practical purposes they would be beyond the period of limitation by the date they were presented before the Court at Secunderabad.
12. It is beyond doubt that the provisions of the Limitation Act (the Act for brevity) would apply to the Code of Criminal Procedure, inasmuch as the Code has not expressly excluded the applicability of the provisions of the former Act. Equally, it is beyond doubt that the provisions of the Act would apply to the N.I. Act. The period of limitation provided under Section 142 of the N.I. Act is 30 days. This period has to be reckoned in accordance with the provisions contained in Sections 4 to 24 of the Limitation Act so as to compute the prescribed period or it can be reckoned in accordance with the provisions contained in Section 470 of the Code. It is apt here to consider both the provisions for brevity and better understanding of the matter. Section 470 of the Code insofar as is relevant for the present purposes may be extracted herein below thus :
“470. Exclusion of time in certain cases–(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in aCourt of first instance or in a Court of appeal or revision, against the offender, shall be excluded :
Provided that no such exclusion shall be made unless prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) ……… …….. …….. …….
(3) ……… …….. …….. …….
Explanation : In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the
application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.
(4) In computing the period of limitation, the time during which the offender–
(a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or
(b) has avoided arrest by absconding or concealing himself, shall be excluded.”
Section 14 of the Limitation Act insofar as is relevant for the present purposes may be extracted hereinbelow thus :
“14. Exclusion of time of proceeding bona fide in Court without jurisdiction– (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which
the applicant has been prosecuting with due diligence another civil proceeding,
whether in a Court of first instance or of appeal or revision, against the same party
for the same relief shall be excluded, where such proceeding is prosecuted in good
faith in a Court which, from defect or jurisdiction or other cause of a like nature,
is unable to entertain it. .
(3) ……… …….. …….. …….
Explanation : For the purpose of this section,–
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) …….. …….. …….
(c) …….. …….. …….”
Sub-section (1) of Section 470 of the Code is in pari materia with Section 14 of the Limitation Act. Sub-section (1) of Section 470 mandates that in computing the period of limitation the time during which any person has been prosecuting with due diligence another prosecution. whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded. Such exclusion shall be made only when the prosecution relates to the same fact and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. The proviso under Sub-section (1) of Section 470 of the Code squarely applies in this case. What Section 142 of the N.I. Act prescribes is only the period of limitation but to reckon that period one has to necessarily fall back on Section 470 of the Code or Section 14 of the Limitation Act, as the case may be. For want of territorial jurisdiction, the complaints have been ordered to be returned. Therefore, the time occupied from the date of presentation of the complaints in these cases till they were ordered to be returned shall have to be excluded.
13. How this period, to be excluded, shall be reckoned is the next question, particularly in view of extension of time granted by the learned Magistrate. What Sub-section (1) of Section 470 of the Code mandates is the time during which the former proceeding has been prosecuted in a wrong Forum shall have to be excluded. But the said provision is silent as regards the manner in which the period is to be computed. It is appropriate here to consider the Explanation appended under Sub-section (3) of Section 14 of the Act, the provision which is quite germane in the context for consideration. A perusal of the same leaves no room for any doubt. It mandates that in the process of excluding the time during which a former proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted. While seeking to elucidate, the exclusion clause contained in Sub-sections (1) and (2) of Section 14, this Explanation provides, inter alia, the manner in which the period to be excluded shall be reckoned. It is also axiomatic from the proviso that only that period during which former proceeding was pending in a Court having no territorial jurisdiction to be excluded. That period shall not be beyond the day on which it ended in the former Court, in other words, the day on which the former proceeding was ordered to be returned. That day should be added to be period and the day succeeding that day on which the proceeding ordered to be returned shall not be reckoned for the purpose of exclusion. Therefore, it clearly mandates that what is to be excluded is the period in which the former proceeding is pending before the Court having no territorial jurisdiction and that period includes the day on which the former proceeding was instituted and the day on which it culminated in the order returning the proceeding for the purpose of presenting it before the appropriate Forum. Once the Court directs the complaint to be returned for presentation before the proper Court by making necessary endorsement thereon in accordance with Section 201 of the Code, the subsequent period from the date of return, inclusive of the same, till the date of the presentation of the complaint before the appropriate Forum cannot be excluded in the absence of any specific provision in regard thereto either under the Limitation Act or under the Code. The subsequent extension of time by the Court at Ahmedabad, therefore, for the reasons mentioned hereinabove is without jurisdiction. The period of limitation is fixed statutorily under the N I. Act. There is no power on the Court to extend that period. Either the Limitation Act or the Code of Criminal Procedure contains provisions only to reckon that period in accordance with the Sections 4 to 24 of the Limitation Act or in accordance with Section 470 of the Code, as the case may be so as to arrive at the period prescribed. In the absence of any specific provision in either one of these two statutes, I am afraid the Court cannot resort to do so even for rendering substantial justice. Therefore, the order passed by the Court at Ahmedabad extending time upto 18.4.1995 is without jurisdiction. Since all these three complaints were ordered to be reiurned on 6.3.1995 the period during which complaints were pending before that Court from the date of institution till 6.3.1995 shall have to be excluded in computing the period of limitation.
14. Admittedly, the causes of action arose in these cases on 9.10.1991, 30.10.1991 and 16.10.1991 respectively. All these three complaints were filed on 23.10.1991, 23.11.1991 and 23.10.1991 respectively before the Court at Ahmedabad. The Criminal Case in C.C. No. 677 of 1995 was thus filed 22 days ahead of the last date of limitation. Similarly C.C. Nos. 679 and 680 of 1995 were filed 7 days and 17 days ahead of the last date of limitation respectively. If the period in between 23.10.1991 and 6.3.1995 on which the complaints were ordered to be returned is excluded as per the provisions contained either under Section 470 of the Code or under Section 14 of the Limitation Act, as the case may be, the complaint could be re-presented by the complainant at any time between the remaining periods as calculated
hereinabove. That means within 22 days from 6.3.1995 in respect of C.C. No. 677 of 1995; within 7 days in respect of C.C. No. 679 of 1995; and within 17 days in respect of C.C. No. 680 of 1995. All these complaints having been presented on 17.4.1995 are clearly beyond the period of limitation as the period interregnum in between 6.3.1995 and 17.4.1995 is more than one month.
15. Mr. T. Bal Reddy, learned Senior Counsel appearing for the complainant, the first respondent herein, contends that the time having been granted by the Metropolitan Magistrate, Court No. 9, Ahmedabad, for presentation till 18.4.1995, all these three complaints can be deemed to be in the custody of that Court till they were presented on 17.4.1995 before the Court of XI Metropolitan Magistrate at Secunderabad. So as to buttress the said contention, the learned Senior Counsel seeks to place reliance upon a judgment of the Madras High Court in D. Ramamoorthi v. K.J. Duraisamy, 1998 Company Cases (Vol. 93) 538. That was a case where the complaint under Section 138 of the N.I. Act was presented before the Court within the time. The complaint was returned for rectification of the defects prescribing the time within which the defects were to be rectified. It was held that the complaint, under such circumstances, so returned should be deemed to be within the custody of the Court, inasmuch as no time limit was prescribed for re-presentation of the complaint after such compliance of the defects. Although the complaint was re-presented after a lapse of nearly nine months, it was held that it was not barred by time. The learned Single Judge of the Madras High Court was of the view that by returning the complaint, a duty is cast upon the Court to specify the period within which the rectification of defect had to be complied with and the period had not been specified, the default of the Court should not prejudice the cause of justice. Obviously, that was not a case of return of the complaint for presentation before the appropriate Court for want of jurisdiction. On the other hand, that was a case where the return was for the rectification of mistakes and for re-presentation before the self-same Court. Therefore, the finding of the Madras High Court that the complaint is deemed to have been in the custody of the Court, in such circumstances, is well founded. But the same is not the case here. All these three complaints were returned for presentation before the appropriate Court, which has jurisdiction to entertain the complaints, on the premise that the former Court had no jurisdiction. For all practical purposes, the date on which the three complaints were re-presented before the Court of XI Metropolitan Magistrate at Secunderabad shall have to be treated the date on which the complaints were presented for the first time before that Court unless the period from the date of presentation of these complaints initially before the Court at Ahmedabad till the date on which the complaints were ordered to be returned for presentation before the latter Court is excluded, the date on which the complaints are presented before the Court of XI Metropolitan Magistrate at Secunderabad having been clearly beyond the period of 30 days prescribed under Section 142 of the N.I. Act. Such an exclusion is permissible in view of Section 470 of the Code as discussed by me supra or in view of Section 14 of the Limitation Act. The exclusion can be made only for the period in which the complaints were pending before the wrong Forum.
16. The learned Senior Counsel appearing for the first respondent further seeks to place reliance upon a judgment of the Kerala High Court in Abdul Azeez Nazeem v. Radhakrishnan, I (2000) BC 540=111 (2000) CCR 383=2000( 1) ALT (Crl.) 484 (Ker.). That was a case where a complaint was filed before the Court at Cherthala well within the period of limitation. On the ground that the Court had no territorial jurisdiction, the complaint was returned for presentation before the Court at Alappuzha. The complaint was accordingly re-presented
within the stipulated time given for re-presentation. When the proceedings were sought to be quashed on the ground that the complaint was barred by limitation, repelling the said contention it was held that the petitioner has no case that either the complaint was filed before the Cherthala Court after the expiry of the’period of limitation provided under Section 142 of the N.I. Act or the complaint was not re-presented by the I st respondent therein before the Alappuzha Court within the time stipulated after the complaint was returned by the Cherthala Court for re-presentation before the proper Court. From the facts, it was not clear that what was the remaining period of limitation when the complaint was presented before the Cherthala Court and what was the time granted for re-presentation before the appropriate Court. Therefore, the said judgment of the Kerala High Court, in my considered view, will not render any assistance to the case of the first respondent herein.
17. Under Section 473 of the Code, the delay can be condoned. However, Section 142 of the N.I. Act, which is germane for consideration in these cases, reads otherwise. The said section starts with the non obstante clause. There has been no provision for condonation of delay. Therefore, Section 473 of the Code cannot in my considered view be invoked. Section 5 of the Limitation Act also cannot be invoked for condonation of delay since it can be invoked only in cases of applications and appeals but not to the original proceedings. Therefore, all the three complaints having been presented beyond the period of limitation i.e. 30 days as reckoned in accordance with the provisions of Section 14 of the Limitation Act or Section 470 of the Code, there is no option except to hold that all the three complaints are barred by limitation.
For the foregoing reasons, these Criminal Revision Cases are allowed.