Case Note & Summary
The petitioner, Kamal Lakhotia, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against Rajesh Parekh (respondent no.1) alleging dishonour of two cheques of Rs. 4,30,000 each issued by M/s. Impact Impex. During trial, it was revealed through defence evidence that Rajesh Parekh was not the proprietor; his father Bhaven Parekh (respondent no.2) was the actual proprietor. The petitioner then filed an application under Section 319 CrPC to implead Bhaven Parekh as an accused. The trial court rejected the application on the ground that a direct complaint against Bhaven Parekh would be barred by limitation under Section 138 NI Act, as the cause of action had arisen earlier. The revisional court upheld this rejection. The High Court, however, allowed the petition, holding that cognizance is taken of the offence, not of the accused. Since the court had already taken cognizance of the offence within limitation, the power under Section 319 CrPC could be invoked to add Bhaven Parekh as an accused even if a fresh complaint against him would be time-barred. The court set aside the orders of the lower courts and directed the trial court to proceed with the application under Section 319 CrPC.
Headnote
A) Criminal Procedure Code - Section 319 - Impleadment of Accused - Cognizance of Offence vs. Accused - The court held that cognizance is taken of the offence and not of the accused, and therefore, a person can be added as an accused under Section 319 CrPC even if a direct complaint against him would be time-barred, provided the court has already taken cognizance of the offence within limitation. (Paras 4-6) B) Negotiable Instruments Act, 1881 - Section 138 - Limitation for Complaint - The limitation period of one month under Section 138 applies to the filing of the complaint, not to the impleadment of additional accused under Section 319 CrPC after cognizance has been taken. (Paras 4-6) C) Criminal Procedure Code - Section 319 - Power to Proceed Against Other Persons - The court clarified that the power under Section 319 CrPC can be exercised at any stage after cognizance and during trial, and the limitation bar under Section 138 NI Act does not apply to such impleadment. (Paras 4-6)
Issue of Consideration
Whether a person can be impleaded as an accused under Section 319 CrPC in a complaint under Section 138 of the Negotiable Instruments Act, 1881, even if a direct complaint against him would be barred by limitation.
Final Decision
Petition allowed. Orders of trial court and revisional court set aside. Trial court directed to proceed with the application under Section 319 CrPC in accordance with law.
Law Points
- Section 319 CrPC
- cognizance of offence not accused
- limitation for complaint under Section 138 NI Act
- impleadment after limitation period
