The Patna High Court recently ruled that if a complaint is not filed within one month of the date the cause of action arose, the magistrate cannot take cognizance of the offense under Section 138 of the Negotiable Instruments Act.
In the case of Amjad Ali Khan @ Guddu Khan versus The State of Bihar (CRIMINAL MISCELLANEOUS No.85714 of 2019), Justice Prabhat Kumar Singh made the following observation:
“In terms of clause (c) of the proviso to section 142 of the NI Act, such complaint should be filed within one month after drawer of the cheque has re ceived notice, and 15 days thereafter have elapsed…It is settled law that the Magistrate is forbidden from taking cognizance of the offence if the c omplaint was not filed within one month of the date of which the cause of action arose.”
FACTS OF THE CASE
Due to a lack of funds, the Petitioner dishonoured two checks made out to the complainant’s company. On March 17, 2018, the complainant served legal notice on the petitioner. However, on April 25, 2018, the complainant filed a complaint against the petitioner under Sections 420, 406, and 120B of the Indian Penal Code, as well as Section 138 of the Northern Ireland Act, due to the petitioner’s failure to pay.
The Petitioner felt cheated by the Magistrate’s order to consider the complaint and the Additional Sessions Judge’s order to dismiss his revision against the Magistrate’s order. The petitioner argued that the lower court has considered a time-barred complaint. Cause of action arose on 17.3.2018, but the complaint was filed on 25.4.2018, beyond the 30 days required by clause (c) of the proviso to section 138 of the Northern Ireland Act. In addition, the complainant did not file a petition to excuse the delay.
State argued that because the order of cognizance was taken without allowing for the delay, it could not be deemed illegal.The order of cognizance cannot be affected by a minor irregularity because it does not address the underlying issue.
The court noted that, according to clause (c) of the proviso to section 142 of the NI Act, a complaint should be filed within 15 days of the cheque’s drawer receiving notice.Cause of action arose on 17.3.2018, and the complaint was filed on 25.4.2018, a delay of seven days. As a result, cognizance has been improperly taken.
The court stated, “In addition, no petition for condoning the delay has been filed on behalf of the complainant, and without condoning the delay, Court below has taken cognizance on the complaint that was barred by limitation.”
The court was of the opinion that both the revisional and cognizance orders are illegal in light of the foregoing. Therefore, put aside.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
JUDGEMENT REVIEWED BY ROLI NAYAN.