DILLIP KUMAR PATRA Vs. JAYANTA KUMAR MOHANTY

JUDGEMENT

(1.) This application under Sec. 482, Cr. P.C. is directed against an order dated 30/6/2000 passed by the learned J.M.F.C. (R), Cuttack in I.C.C. No. 24 of 1999 with a prayer to recall the order of taking cognizance in the said complaint case.

(2.) The fact giving rise to this revision application as narrated tends to reveal that the opposite party instituted a complaint case which was registered as I.C.C. No. 10 of 1998 against the present petitioners for the offence under Sec. 138 of the Negotiable Instruments Act and in the said case cognizance of the aforesaid offence was taken by the order of the learned Magistrate dated 20/2/1998. But the same was dismissed on 17/4/1999 under Sec. 204(4), Cr. P.C. as the complainant was absent and failed to file fresh requisites. Thereafter another complaint was filed on 7/5/1999 on the self-same allegation and basing upon the same dishonoured cheque, which was registered as I.C.C. No. 24 of 1999 and cognizance was taken under Sec. 138 of the Negotiable Instruments Act. As it appears from the narration made in the complaint petition that the present petitioners issued a cheque on 6/9/1997 for an amount of Rs. 77,755.26 paise which was presented by the opposite party through his Banker for collection but the same was returned to the complainant vide memo dated 15/9/1997 and received by the complainant on 13/11/1997. Thereafter notices were issued by the complainant to the petitioners on 27/11/1997 which were received by them on 18/12/1997. Since the amount was not paid, a complaint case was filed which was within the time specified and within the period of limitation so prescribed by the statute. The same was registered as I.C.C. No. 10 of 1998. According to the learned counsel for the petitioners after the dismissal of the first complaint, a second complaint on the self-same ground, self-same allegation and self-same cause of action is not maintainable. According to him the cognizance so taken by the Magistrate for the offences under Sec. 138 of the Negotiable Instruments Act is illegal the reason being that the second complaint has been filed beyond the period of limitation and in contravention of the statutory provision incorporated under Secs. 138 and 142 of the Negotiable Instruments Act.

(3.) According to Mr. Mishra, the learned counsel for opposite party, the initial complaint so filed was not adjudicated on merit and it was dismissed on technical grounds like not taking steps for filing the requisites and without moving the higher Court against the said order and without filing an application before the said Court for restoration of the complaint, a second complaint was filed which is maintainable. According to him, the limitation is not applicable as because the present complaint petition was dismissed without any adjudication and there is no bar under the Cr. P.C. for filing a second complaint. To fortify his argument, learned counsel for the petitioner pressed into service a decision of the Apex Court in the case of Jatinder Singh and others v. Ranjit Kaur, wherein the Apex Court held that when a Magistrate conducts an enquiry under Sec. 202, Cr.P.C. and dismisses the complaint on merit a second complaint on the same facts can only be made under very exceptional circumstances.