•^ M'yl o HIGH COURT OF CHHATTISGARH AT BILASPUR Cr:M.P.No.178of2007 Petitioner Tameshwar Vaishnav S/o Udhalas Vafehnav, aged about 40 years, R/o village Barbaspur, Post itar, Police Station Gatapur Jungte, Tahsil Khairagarh, District Rajnandgaon C.G. Respondent Versus Ramvishal Gupta S/o ManRilal Gupte, agedabout 65 years, R/o Civil Lhie, Ward No. 2 Khairagarh, Pdice Station and Tahsil Khairagarh. District Rajnandgaon C.G. PETITION UNDER SECTION 482 OF THE CODE OF CRIMHNAL PROCEDURE. 1973 (SB: Hon'ble Mr. Justrce T.P. Sharma) Present: Shri Rajesh Pandey, Advocate for ttie petitioner. Shri Sunit Sahu, Advocate for ttie respondent. ORDER (Passed on 27th March, 2008) 1. This petition is cfirected against the order dated 19.3.2007 passed by Additional Sessions Judge, Khairagarh in Criminal Revision No. 130/2006 affirming the order dated 13.7.2006 passed by AdcUtional Chief Judicial Magistrate, Khairagarh in Criminal Case No. 339/2006. 2. The order is challenged on the ground that once complainant/petitioner has taken recouree under ctause (b) ©f section 138 of the Negotiable Instruments Act, 1881 Qwreinafter referred to as, the Aet. 1881'), then he is required to fite c^mpliant witiiin the stipulated time in accordance with clause (b) of section 142 of the Act, 1881 and no limitation is availabte to the complainant from the date of failure of the second demand notice and the revisional court has committed illegality by not quashtng the order of issuance of process. -'9— 3. Coun^l for the parties heard. 4. Order impugned and copy of the complaint fited on behalf of the petitioner perused. 5. It is argued on behalf of the applteant that after issuance of fir^ notice under dause (b) of sectton 138 of the Act, 1881, the respondent has again tesued second notice and wh«nthe petitioner has failed to make the payment of the amount demanded, tfie respondent has filed a complaint against the petitfoner calculaling the limitation from the second notice and complaint filed by ttie respondent was barred by limitation. 6. Reliance is placed on beharff of the petitioner in the matter of Prem Chand Vijay Kumar v. Yashpal Singh and anottier reported In (2005) 4 SCC 417 in which the Hon'ble Supreme Cwrt ha®hetel in para 8 and 9 as under:- "8. C/ause (a) of the p/owso to Sectteo f38 dbes not pi^ any embafgo upon ffse payee to succes^ve/y fsesenf a dishonourBd dieque <&iring ^he period of ite vafkSty. This apart, in ttie cowse of business ^ranswtions it is iwt uncommwi for a chegue bwng fetumed due to in^Kcient funds or similar such reascffis ancf being p/©s^»tecfagain by the payee after some time, on his awn voli^on or at fffe fequest of ffie cfrawer, in expectation thaf it wouki be encashed. The primary ir^e st of ffie payee is to get his money and compulsion and rwt chcwe. On eaeft pfBsentation of the c/?egue arrcf its cSshonour, a ftesh rigM- and not a cause ofacffon - accnies in Ivs fevour. He may, ttTerefore, wittiout telang pre-empto/y acfcn in exenas®of his right uncter clauw (b) of Secffon 138, go OR piesefvSf^ the cheque so as to enable him to exerc/se such right e^ any point of time dwing the validity of the cfwque. 9. But once he gives a n<^ce uncter dause (b) of Section 138, he forfe/te such right as in case of faifupe of ffw drwwer fo pay ff»money wiffiin the sSpulated time, he wousfd be o-^ V.:1 - 3- fiabfe for offence and the cause of acffc^f for fiiing the compfaint witt arise." 7. On the other hand, order impugned is supported on behalf of the respondent and submitted that now the taw is amended and provjso has been added in clause (b) of section 142 of the Act, 1881 and the complaint may be fited after the stipulated time and cognizance may be taken in the complaint if the compiamant satisfies the court that he had sufficient cause for not making a compteint within such period. 8. In ttie present case, the respondent has made a demand after dishonored of the cheque and he again presented the cheque for payment. Same was again dishonored. Demand for due was made, but due was not paid by the petitioner. Thereafter, the respondent had filed a complaint for the offence punishable under secBon 138 ofthe Act, 1881 within the stipulated time from tie second notice of demand. 9. On careful examination it is ctear that cognizance may be taken on the complaint even after stipulated time jfthe complainant is abte to satisfy the Court that he had sufficient cause for not makii^ a complaint within such period. The question of limitation in the present case is debatable issue and if the complainant satisfies the Court for not making a complaint within stipulated time, then the Court may take cognizance even after Uie period of Itmitation as provided in accordance with clause (b) of section 138 read with clause (b) of section 1 42 of the Act, 1 881. 10. After rejection of the order of revision, the petitioner has filed thls present petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, 'ttie Code'). Inherent /y^ f kw i., :.,' '•^.'' 11. ^- power under section 482 of »ieCode cannot be used as substitute of revision. Consequently, the petition betng devoid of merit is liabte to &e dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge Bf-