Case Note & Summary
The applicants, original accused Nos. 2 to 4, challenged the order dated 18.06.2016 passed by the Judicial Magistrate First Class, Gangapur, issuing process against them for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The respondent No. 2, original complainant, had filed a complaint alleging that the accused No. 1 company, through its Managing Director, issued two cheques on 18.03.2014 and 19.03.2014 for Rs.22,43,960 and Rs.22,68,097 respectively towards payment for cotton purchased. The cheques were dishonoured, and after serving a demand notice, the complainant filed the complaint on 07.08.2014 before the Judicial Magistrate First Class, Gangapur, which was returned on 12.12.2014 for want of territorial jurisdiction. The complaint was re-presented on 16.10.2015, and the Magistrate issued process against all accused. The applicants contended that the complaint was barred by limitation as it was re-presented beyond the prescribed period, and the Magistrate had not taken fresh cognizance. The court analyzed the provisions of Section 138 of the Negotiable Instruments Act and the limitation period. It held that when a complaint is returned for want of jurisdiction, the Magistrate must take cognizance afresh upon re-presentation, and the limitation period runs from the date of such cognizance. In this case, the complaint was re-presented on 16.10.2015, which was beyond the one-month period from the date of cause of action. The court also noted that the period during which the complaint was pending before the wrong court cannot be excluded under Section 14 of the Limitation Act, 1963, as the complainant failed to demonstrate due diligence. Consequently, the court allowed the application, quashed the order issuing process, and discharged the applicants.
Headnote
A) Criminal Procedure - Territorial Jurisdiction - Section 138 Negotiable Instruments Act, 1881 - Complaint returned for want of jurisdiction - The complaint was initially filed on 07.08.2014 but returned on 12.12.2014 for lack of territorial jurisdiction. It was re-presented on 16.10.2015 without any order of cognizance. The court held that the Magistrate must take cognizance afresh after the complaint is re-presented, and the limitation period runs from the date of such cognizance. Since the complaint was re-presented beyond the limitation period, the process issued was illegal. (Paras 1-10) B) Limitation - Section 138 Negotiable Instruments Act, 1881 - Period of limitation for filing complaint - The complaint was returned on 12.12.2014 and re-presented on 16.10.2015, which is beyond the one-month period from the date of cause of action. The court held that the period during which the complaint was pending before the wrong court cannot be excluded under Section 14 of the Limitation Act, 1963, as the complainant failed to establish due diligence. Hence, the complaint was barred by limitation. (Paras 11-15)
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, filed after being returned for want of territorial jurisdiction, can be entertained without the court taking fresh cognizance and within the period of limitation.
Final Decision
The court allowed the application, quashed the order dated 18.06.2016 issuing process against the applicants, and discharged the applicants from the offence under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Territorial jurisdiction under Section 138 Negotiable Instruments Act
- 1881
- Limitation for filing complaint
- Return of complaint for want of jurisdiction
- Fresh cognizance after return
