Code of Criminal Procedure, 1973: s.482 – Quashing of cognizance of offence taken under s.138 NI Act – Case of appellant was that on receipt of memo on 4.12.2015 from bank regarding dishonour of cheques issued in his favour by respondent, the appellant issued a legal notice on 31.12.2015 – According to appellant, between 14.2.2016 and 23.2.2016, he made queries with the postal department but no proof of service was provided to him – Accordingly on 26.2.2016, he issued a second notice – This was replied by respondent on 2.3.2016 – Thereafter, on 11.5.2016, appellant filed complaint under s.138 – Magistrate condoned the delay in filing complaint and took cognizance of offence – High Court held that complaint was not filed within the statutory period of thirty days and quashed the proceedings – On appeal, held: The appellant in the complaint had specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished to him – In such circumstance, the appellant issued a second notice – The requirement specified in proviso (b) to s.138 is that the notice must be issued within thirty days of the receipt of the memo of dishonour – It was first notice dated 31.12.2015 which constituted the cause of action for the complaint under s.138 – The complaint was instituted on 11.5.2016 – Under s.142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to s.138 – The proviso, however, stipulates that cognizance of the 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 – Delay in filing complaint was satisfactorily explained in the complaint – High Court had merely adverted to the presumption that the first notice was deemed to have been served if it was dispatched in the ordinary course – Even if that presumption was applicable, sufficient cause was shown by the appellant for condoning the delay in instituting the complaint – The order is High Court is, therefore, set aside and complaint is restored to the file of the trial court – Negotiable Instruments Act, 1881 – ss.138, proviso, clause (b), (c), s.142(1).
Allowing the appeal, the Court
HELD : The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The proviso however stipulates that cognizance of the 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. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. The impugned judgment of the High Court is unsustainable. The order passed by the Single Judge is set aside. The complaint accordingly stood restored to the file of the trial court. [Paras 11, 12] [707-C-F; 708-A-B]
MSR Leathers v. S Palaniappan (2013) 1 SCC 177 : [2012] 9 SCR 165 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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