WILLARD INDIA LTD Vs. STATE

JUDGEMENT

(1.) This revision petition calls for examination of the question of limitation for taking cognizance in a complaint case under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act.) The impugned order dated 29.11.2002 considered the plea of limitation raised by the petitioners who were the accused in the complaint case and held that the complaint was filed within limitation and, therefore, cognizance could be taken even after the expiry of one year from the date on which the cause of action arose. The facts leading to the present revision petition are as under. The complaint was presented before the Trial Court on 5.12.1996 when the Magistrate passed the following order:

(2.) No order showing that cognizance was taken was passed on that date. Nor was any order summoning the petitioners was made. It was only on 13.7.1998 that the Trial Court passed an order directing issue of process against the petitioners. It was submitted before the learned Trial Court that as per the provisions of Sections 468 and 469 of the Cr.P.C. the cognizance of an offence under Section 138 of the Act could be taken within one year from the date of commission of the offence and that by the time the process was ordered against the petitioners that is, on 13.7.1998 more than one year of the date of the offence had expired. In support of his case learned Counsel for the petitioners cited the judgment of the Supreme Court in the case of Rishna Pillai v. T. A. Rajendran and Anr., 1990 (Supp) SCC 121.

(3.) There is no doubt that filing of a complaint and taking cognizance are two distinct acts, There is also no dispute that the cognizance is taken on the date when the Magistrate finds that an offence had been committed. This finding of Magistrate can be recorded by a speaking order. If it is not so done, the order to issue process against the accused itself can be taken as indication of the fact that the Magistrate had taken cognizance of an offence, It cannot be disputed that in the present case cognizance was not taken on 5.12.1996.