KUMUDBEN JAYANTILAL MISTRY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Revisionist, the original accused person in Criminal Case No. 1683 of 1996 pending in the court of learned JMFC, Gandevi, has called into question the order dated 22.1.1998 made below her application for discharge under section 258 of the Code of Criminal Procedure, 1973 (for short, "the Code"). It was contended in the application for discharge that the petitioner herein had given a post dated cheque against the promise of execution of a document of sale of immoveable property and upon failure of the complainant to execute the documents, the petitioner had stopped payment of the cheque in question. Thus, despite the clear understanding and instruction to the original complainant not to present the cheque for realization, the cheque having been presented and dishonoured, the petitioner had prayed for an order of discharge. The trial court, after consideration of the contentions of the parties, observed that there was a prima facie case for proceeding with the summons triable case under section 138 of the Negotiable Instruments Act, 1881 and since there was no reason to drop the proceedings, the application was rejected by the impugned order. Learned counsel for the petitioner fairly conceded that the application of the petitioner under section 258 of the Code was, in view of subsequent amendment and clarification of the law by the Supreme Court, not maintainable and, therefore, prima facie, the revision application would not have been required to be entertained.

(2.) However, learned counsel Mr A.D. Shah vehemently argued that, in the facts and circumstances of the case, this court was required to exercise its extraordinary jurisdiction and inherent powers to quash the proceedings of the criminal case in the interest of justice as the court had clearly erred in taking cognizance of the offence in violation of the provisions of section 142 of the Negotiable Instrument Act, 1881 (for short, "the Act"). Since that submission of the learned counsel was based upon certain admitted facts and averments made in the complaint itself, the factual background, as far as it is relevant, may be recapitulated.

(3.) Learned counsel Ms. Nisha M. Thakore, appearing for the respondent-original complainant, submitted that the petitioner could not be allowed to raise, for the first time, the issue of limitation which was not raised before the trial court and the impugned order being otherwise perfectly legal and justified, the present revision application was required to be rejected without entering into the new ground sought to be made out without any foundation in the trial court. She further submitted that the issue of limitation was consciously not raised in the trial court in the year 1998 in view of the interpretation prevailing at that time, as far as fulfilment of the conditions under section 138 of the Act were concerned. However, in view of the difficulties faced by the complainants and the courts, the legislature has come forward with the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 wherein section 142 of the Act was amended so as to grant discretion to the court in the matter of condoning delay in filing of the complaint. She submitted that though that amendment came into force only w.e.f. 6.2.2003 it would have retrospective effect, as it touched upon only procedural aspect of the matter and did not create or extinguish any substantive right. It was submitted on that basis that now the Court could be considered to have found sufficient cause to take cognizance even as, at the relevant time, the law about starting point of limitation was neither clear nor settled and the petitioner had not raised any objection on that count. That contention was strongly opposed by learned counsel Mr Shah, who submitted that the right and remedy of the complainant were closed as soon as the period of limitation expired. He relied upon judgment of the Supreme Court in New India Insurance Co.Ltd. v. Smt.Shanti Misra ( AIR 1976 SC 237) and pointed out the following proposition: