SEHGAL ENTERPRISES Vs. BALAJI EARTH REMOVERS

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "Cr. P. C.") has been filed arising out of the order dated 24.3.2009 passed by VI Additional Sessions Judge, Satna in Criminal Revision No. 105/2008 conforming the order dated 27.2.2008 of the Judicial Magistrate First Class, Satna passed in Complaint Case No. 687/2006 whereby the application seeking discharge filed by the petitioner has been rejected.

(2.) Both the courts held that passing an order on the said application is amounting to review of the earlier order which is not permissible as per the judgments of the Apex Court in the cases of Adalat Prasad v. Rooplal Jindal and others, 2004 7 SCC 338, Subramanium Sethuraman v. State of Maharashtra & another, 2004 AIR(SC) 4711 and of this Court in the case of Girraj Patwa v. Dayaram,2008 ILR(MP) 3355. Being aggrieved by both these orders and and also seeking quashment of the private complaint filed by respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act") this petition has been preferred.

(3.) The facts unfolded to the present petition are the petitioner/drawer gave two cheques of dated 11.4.2001 and 20.4.2001 to the respondent. Those cheques were presented in the bank, which were dishonoured on 1.10.2001. On issuance of the notice of demand by the payee, it was served on drawer on 5.11.2001, but the payments were not made within 15 days up to 20.11.2001. However, the complainant filed the complaint on 23.1.2002 by a delay of about one month. It is urged that as per Section 142 (1) (b) of the N. I. Act taking of the cognizance is barred if the complaint is not made within one month from the date on which the cause of action arose under Clause (c) of proviso to Section 138 of the N. I. Act. Once taking of cognizance is barred beyond the specified period, petitioner ought not be tried taking cognizance on such complaint after framing the charge, however, the application seeking discharge may be allowed by the trial court. Petitioner submits, taking of cognizance on the complaint is barred therefore it is not maintainable. He has placed reliance on a judgment of the Apex Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah & another, 2008 13 SCC 689 and contends that the cognizance of the offence cannot be taken if the complaint has not been filed within the time so specified. It is further urged that on the date of filing of the complaint i.e. 23.1.2002 proviso to Section 142(1)(b) was not added and the amendment was brought later by Act No. 55/2002 w.e.f. 6.2.2003. Such amendment is substantive in nature, therefore, it would apply prospectively and not retrospectively. The court at the time of taking the cognizance has not considered the issue of belated filing of the complaint even by exercising the power under Section 473 of Cr. P. C., however, courts below committed error to reject the application filed by the petitioner.