JUDGMENT
J.G. Chitre, J.
1. The appellant is hereby assailing correctness, propriety and legality of the judgment and order passed by Chief Judicial Magistrate, Kolhapur, in the matter of Regular Criminal Case No. 402/1996, by which he acquitted the accused for an offence punishable under provisions of Section 138 of Negotiable Instruments Act 1881 (hereinafter referred as Negotiable Instruments Act for convenience).
2. The prosecution case, in brief; is that respondent No. 1, happens to be the partner of Instacomp, a firm dealing in computers and auxiliary parts for performance of the computers. It is alleged by the appellant that she purchased a printer from respondent No. 1 for Rs. 35,000/-. She paid Rs. 5000/- in cash for which voucher bearing No. 586 was issued, vide voucher No. 585 acknowledgment of payment of Rs. 25,000/-was vouchered. On 12-10-1995 Rs. 5000/-were given already. Thus, the said amount of Rs. 35,000/- were accounted for. The appellant used that printer for some days and thereafter as the said printer was not properly functioning, a complaint was made. After due settlement, it was agreed that respondent No. 1 was to pay to the appellant a sum of Rs. 26,000/- and she was to return back the said printer to him. On 15-6-1996 a letter was issued in that context by respondent No. 1. The printer was returned, a cheque bearing No. 145527 for sum of Rs. 26,000/- drawn on Shri Veershaiv Co-op. Bank Ltd. Kolhapur, dated 15-6-1996 was given to appellant. As per prosecution case, the said cheque was presented for payment through Kolhapur Urban Co-op. Bank, Branch Shahupuri on 17-6-1996. The said cheque was dishonoured. This fact was informed to respondent No. 1 by the present appellant on telephone. In view of that, respondent No. 1 requested the appellant to present it again for payment and assured that he would be making necessary arrangement for payment. The said cheque was again presented for encashment on 26-6-1996 through the said bank. It was again dishonoured. Again respondent No. 1 was orally informed about that and he requested the appellant to present it again with assurance that he would make necessary arrangement for encashment of said cheque. Said cheque was again presented on 21-6-1996 and it was dishonoured on the ground that the payment was not arranged.
3. The appellant issued a notice in that context on 1-7-1996 to respondent No. 1. The said notice was received by respondent No. 1 on 2-7-1996. He did not pay the said amount of Rs. 26,000/- to the appellant. In the meanwhile, the appellant did not receive the acknowledgement due receipt through the post. Hence, she lodged a complaint with Postal Department in respect of non-receipt of acknowledgement due receipt. After making necessary enquiry, the Postal Department informed her on 22-8-1996 that the said acknowledgement receipt was lost in handling, but provided her a certified copy of the said acknowledgement receipt. The appellant filed the criminal complaint in the Court, which was tried by the learned Chief Judicial Magistrate, Kolhapur. The learned Chief Judicial Magistrate after trial held that the said complaint was time barred, as it was filed after the period of one month. By holding that way the Chief Judicial Magistrate, Kolhapur acquitted the accused and the said judgment of acquittal was put to challenge by this appeal.
4. Shri Vikas Mali, Advocate holding for Shri T. S. Ingale submitted that the learned Chief Judicial Magistrate was wrong in acquitting the accused, because, the delay was caused for the ground which was not in control of the present appellant. It was submitted that as the said concerned Postal Department informed late to appellant that acknowledgement due receipt was lost in transit, and therefore, the delay has occasioned. He submitted that the said judgment and order of acquittal be reversed and the respondent No. 1 be convicted and sentenced.
5. Shri Shringarpure, A.P.P. justified the impugned judgment and order as correct, proper and legal.
6. None appeared for respondent No. 1, respondent No. 1 is also absent, though properly served.
7. In view of the submissions advanced before the Court and the evidence on record, this Court comes to the conclusion that there is no substance in the appeal and there is no ground for setting aside the judgment and order of acquittal passed by the Chief Judicial Magistrate, Kolhapur for the reasons stated hereunder.
8. Section 138 of Negotiable Instruments Act gives idea, as to when offence stands committed in view of provisions of Section 138. The appellant has not followed the formalities indicated by proviso to Section 138 of Negotiable Instruments Act. Section 142 of Negotiable Instruments Act Sub-section (b) provides that:
“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.”
There has been proviso to Sub-section (b) of Section 142 which provides:
“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. Provisions of Section 143, Sub-section (1) provides:
“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees.
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code (the said Code means Code of Criminal Procedure).
Sub-section 143 provides that:
“the trial of a case under this section shall, so far as practicable, consistently with the interest of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
Sub-section (3) provides that:
“Every trial under this Section shall be conducted as expeditiously as possible and in endeavour shall be made to conclude the -trial within six months from the date of filing of the complaint.”
Section 144 provides a mode of service of summons, which is in accordance with the Code of Criminal Procedure.
Provisions of Section 145 provides that the permissibility of the evidence on affidavits. Therefore, generally, unless a special provision has been made by the Negotiable Instruments Act, the procedure which is to be followed is in accordance with the provisions of Code of Criminal Procedure, 1973. Wherever possible Negotiable Instruments Act has made the provision for such exceptional provisions.
10. Section 473 of the Code provides that:
“Notwithstanding anything contained in the foregoing provisions of this Chapter XXXVI, 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 interest of justice.
11. Section 200 of the Code provides that:
“A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witness, and also by the Magistrate.”
12. Section 202 provides Sub-section (1) that :
“Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, provided that no such direction for investigation shall be made–
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.”
Sub-section (2) provides that: “In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that, if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.”
Sub-section (3): If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
13. Section 203 of Code provides that:
“If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.”
14. Therefore, when a complaint has been presented before a Magistrate in context with an offence for which a punishment has been provided and for which the procedure has been laid down by Code of Criminal Procedure, 1973, the Magistrate is under an obligation, as it has been indicated by provisions of Sections 200, 202, 203 to make an inquiry by application of judicial mind as to whether the complaint presented before him is fit for taking cognizance. In this context it is obligatory on the Magistrate to satisfy himself whether such complaint has been presented within the period of limitation. He has to consider the provisions of Section 468 of Code as well as provisions of Sections 469, 470, 471, 472 and 473 of the Code. Therefore, every complainant is obliged to submit an application for condonation of delay as indicated by provisions of Section 473 of the Code if prima facie the complaint is indicating that it is filed beyond the period of statutory limitation provided by concerned Act.
15. Therefore, every complainant has to annex one application to such complaint for making a prayer to the concerned Court for condoning delay when the said complaint is presented in Court. The right of the Court to dismiss the complaint, it being barred by period of limitation, continues till the judgment is pronounced after conducting the trial. Such right to dismiss the complaint on that count continues even in appeal or in revision if there are grounds to do so.
16. Even during the trial also the Court can ask the complainant or his lawyer to explain the doubt about the tenability on the point of limitation. Whenever such occasion arises the complainant is under legal duty to satisfy the Court that the complaint is within limitation. Even at such late stage also an application is permissible to be moved praying for condonation of delay and in fit cases, the Court should be liberal in condoning such delay if the complainant is not blameable for his own acts. If the delay has been caused by happening of some event not within control of complainant he would be entitled to get the delay condoned if he is not indolent. The law does not help the indolent. The delay has to be condoned in the interest of justice and in context with the grounds which were beyond the control of such complainant in the interest of justice.
17. In the present case, when the appellant knew on the 2nd of July, 1996 that the said notice was served on respondent No. 1 on 2nd July, 1996, within a week he should have filed the complaint in the Court or positively in any case, before the end of the statutory period of limitation. Taking into consideration the date 2nd July, 1996 when in spite of getting the said notice respondent No. 1 did not think of informing the present appellant that he would make attempts for making payment which was indicated by the said cheque which was dishonoured. The complainant should have filed said complaint within period of one month from 2nd July, 1996 but so far as the present complaint is concerned, it was filed in the month of September, 1996 obviously after statutory period of limitation of one month. Therefore, the submission which has been advanced by Shri Mali that the evidence of concerned officer of the Postal Department should have been accepted by the trial Court goes in vain. Thus, the present appeal fails.
18. As it has been held by the Supreme Court in the matter of Shivaji Genu Mohite v. State of Maharashtra, , the High Court should be slow in setting aside the judgment of acquittal unless the impugned judgment is illegal or perverse. In this case there is no ground for setting aside the judgment of acquittal passed by the Chief Judicial Magistrate, Kolhapur. In the result, the appeal fails and it stands dismissed.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.