Sec.420 of IPC; in absence of elements of cheating, does not automatically extends the limitation of time barred complaint u/s. 138 of N.I.Act

Dishonor of cheque - demand notice issued - complainant alleges that after receipt of notice, accused assured for payment within two days but failed - complaint for the offences punishable u/s. 138 of N.I.Act and 420 of I.P.C. filed without any application for condonation of delay.

Held: If no elements of offence of 'cheating' are found in the complaint then cognizance has to be taken u/s.142(b) of N.I.Act. Sec.420 of IPC; in absence of elements of cheating, does not automatically extends the limitation of time barred complaint u/s. 138 of N.I.Act 

   In this regard, this Court is of the view that both in Section 138 and Section 142 of the NI Act, a special provision, distinct from the provisions of the CrPC in respect of limitation in taking cognizance has been made. It is apparent that the special statute rolls out distinctly different procedure. [Para No.6]

   It is equally well settled that if the special statute provides a different procedure, the provisions of the CrPC would not apply to the extent of inconsistency. [Para No.7]

Having regard to Section 138 and Section 142 of the NI Act, if the cognizance of dishonor of cheque for insufficiency of fund is taken in absence of element of 'cheating', the cognizance has to be taken under Section 142(b) of the NI Act. [Para No.8]

   The proviso below Section 142(1)(b) of the NI Act has further laid down that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfied the court that he had sufficient cause for not making the complaint within such period. There is no dispute that there was no attempt or application filed from the complainant seeking the court's leave or to satisfy the court that the complainant was prevented by sufficient cause for not making complaint within the said period. The court does not have any power to condone the said period unless the complainant satisfied the court in respect of his disability in filing the complaint within the period, as prescribed by law, as this Court has clearly observed that the complainant while urging the trial court to take cognizance of offence punishable under Section 420 IPC, this was a latent design to have automatic extension. But the court below has committed apparent error by taking cognizance of the offence punishable under Section 138 of the NI Act.[Para No.19]

Tripura High Court

Golam Mostafa Seekh

Vs.

The State Of Tripura

Decided on 07/07/2020