SCR.A/309/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 309 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= MAHESHKUMAR NATWARLAL TRIVEDI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR HARSHADRAY A DAVE for Applicant(s) : 1,MR HARDIK A DAVE for Applicant(s) : 1, MR M.R.MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR TUSHAR MEHTA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/09/2008 ORAL JUDGMENT 1. Rule. Mr.M.R.Mengdey, learned APP waives service of Rule on behalf of respondent No.1- State and Mr.Tushar Mehta, learned Advocate waives service of Rule on behalf of respondent No.2. With the SCR.A/309/2008 2/6 JUDGMENT consent of the learned Advocates appearing on behalf of the respective parties, the application is taken up for final hearing today. 2. By way of this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the petitioner / applicant – original accused has prayed for an appropriate order to quash and set aside the complaint / Criminal case No.570 of 2003 pending in the Court of learned J.M.F.C., Kalol and further quashing and setting aside the order dated 26.10.2007 passed by the learned Additional Sessions Judge, Gandhinagar in Criminal Revision Application No.67 of 2007 as well as the order dated 16.05.2007 passed by the learned J.M.F.C., Kalol below Exh.58 in Criminal Case No.570 of 2003. 3. Respondent No.2 – original complainant filed Criminal Case No.570 of 2003 against the petitioner in the Court of JMFC, Kalol for the offence under Section 138 of the Negotiable Instruments Act (for short 'N.I.Act') alleging inter-alia that cheque for an amount of Rs.5 lacs was issued by the petitioner in his favour and when the said cheque was deposited with the Bank same was returned with endorsement 'insufficient funds'. It was further case on behalf of the complainant that thereafter legal notice as contemplated under Section 138 of the N.I.Act was served upon the petitioner and within stipulated time amount under cheque was not paid and therefore, it SCR.A/309/2008 3/6 JUDGMENT was alleged that the petitioner has committed offence under Section 138 of the N.I.Act. That the learned JMFC, Kalol issued summons / process upon the petitioner for the offence under Section 138 of the N.I.Act. That thereafter, during trial and after recording of the evidence of the original complainant, it has come on record that notice was received / served upon the petitioner on 11.02.2003 and the complaint was lodged on 01.04.2003 i.e. beyond the period of limitation. Therefore, the petitioner submitted application under Section 235 of the Criminal Procedure Code vide Exh.58 requesting the learned trial Court to acquit the petitioner- accused. Said application came to be dismissed by the learned trial Court vide order dated 16.05.2007. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh.58, the petitioner preferred Revision Application No.67 of 2007 before the learned Revisional Court, which came to be dismissed vide judgment and order dated 26.10.2007. Hence, the present petitioner preferred present petition under Articles 226 and 227 of the Constitution of India. 4. Mr.Hardik Dave, learned Advocate for the petitioner has submitted that cheque dated 08.01.2003 was returned unpaid on 27.01.2003 and legal notice under Section 138 of the N.I.Act was issued on 10.02.2003 and that though it is stated in the complaint that it was served on 17.02.2003, however, certificate issued by the Sub-Post Master of the SCR.A/309/2008 4/6 JUDGMENT concerned area is to the effect that same was served on 11.02.2003 and the complaint was lodged on 01.04.2003 and therefore, same has been filed beyond period of limitation of 45 days from the date of service of notice under Section 138 of the N.I.Act and therefore, the Court could not have taken cognizance of the offence under Section 138 of the N.I.Act. It is submitted that considering Section 142 of N.I.Act read with Section 138(c) of the N.I.Act impugned complaint has been filed beyond period of limitation and that too without there being any application for condonation of delay. 5. Mr.Tushar Mehta, learned Advocate for respondent No.2 has vehemently submitted that whether notice upon the petitioner was served on 11.02.2003 or not is question of evidence and therefore, when the evidence of original complainant has been recorded and further evidence is yet to be recorded, it is requested not to quash the complaint / criminal case. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. Few dates are required to be considered while considering present Special Criminal Application. Cheque in question was dated 08.01.2003 and on presentation of the same before the concerned Bank, same was returned unpaid on 27.01.2003 and legal notice calling upon the petitioner to make SCR.A/309/2008 5/6 JUDGMENT payment under the cheque as contemplated under Section 138 of the N.I.Act was issued on 10.02.2003 and as per the certificate issued by the Sub-Post Master of the concerned area same was served upon the petitioner on 11.02.2003. In the said complaint it is submitted that notice upon the petitioner on 17.02.2003, however, considering evidence of Sub-Post Master of the concerned area, same has been served on 11.02.2003. Said certificate of the Sub-Post Master of the concerned area is produced on record during the evidence of the complainant himself. The complaint has been lodged on 01.04.2003. As per Section 138(c) of the N.I.Act, cause of action to file complaint arises after 15 days of receipt of notice by the accused. As per Section 142 of the N.I.Act, no Magistrate shall take cognizance of the complaint if the same is not filed within one month of cause of action under Section 138(c) of the N.I.Act. Of course, after the said period, complaint by the Magistrate can be entertained and cognizance can be taken provided any Application is made by the complainant to condone the delay making out sufficient cause for not filing the complaint within stipulated time as contemplated under Section 142 of the N.I.Act. In the present case, there is no such request and/or application by the complainant requesting to condone the delay in filing the complaint. As stated above, the complaint has been filed on 01.04.2003. When the notice under Section 138 of the N.I.Act was served upon the accused on 11.02.2003 cause of action to file complaint under SCR.A/309/2008 6/6 JUDGMENT Section 138 of the N.I.Act would be 26.02.2003 and within one month thereafter, the complaint is required to be filed by the complainant. In the present case admittedly, complaint has been lodged on 01.04.2003. Therefore, it is beyond prescribed period of limitation as contemplated under Section 142 read with Section 138(c) of the N.I.Act. Under the circumstances, learned JMFC would not have taken cognizance of the offence under Section 138 of the N.I.Act against the petitioner on the said complaint. Under the circumstances, impugned Criminal Case/ complaint deserves to be quashed and set aside. 8. For the reasons stated above, the petition succeeds. Criminal Case No.570 of 2003 pending in the Court of learned J.M.F.C., Kalol against the petitioner for the offence under Section 138 of the N.I.Act is hereby quashed and set aside. Rule is made absolute accordingly. [M.R.Shah,J.] satish