S.142 NI Act | Magistrate Can't Take Cognizance If Complaint Not Filed Within One Month After Cheque Drawer Received Statutory Notice: Patna HC

The observation came from Justice Prabhat Kumar Singh:

"In terms of clause (c) of the proviso to section 142 of the NI Act, such complaint should be filed within one month after drawer of the cheque has received notice, and 15 days thereafter have elapsed...It is settled law that the Magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date of which the cause of action arose."

The Petitioner had issued two cheques in favour of complainant's firm which were dishonored due to insufficiency of fund. Thereafter, the complainant gave legal notice to the petitioner on 17.3.2018. However, since the petitioner did not make payment,the complainant lodged a complaint case under Sections 420, 406 and 120B of the IPC read with section 138 of the NI Act against the petitioner on 25.4.2018.

The Petitioner was aggrieved by Magistrate's order taking cognizance of the complaint and the order of Additional Sessions Judge, dismissing his revision against Magistrate's order.

Petitioner contended that cognizance has been taken by the Court below on a time barred complaint. In the instant case, cause of action arose on 17.3.2018, whereas complaint was filed on 25.4.2018, i.e, beyond the statutory period of 30 days as per clause (c) of the proviso to section 138 of the NI Act. That apart, no petition was filed for condoning the delay by the complainant.

State argued that order of cognizance cannot be said to be bad in law simply because that the same has been taken without condoning the delay. A minor irregularity does not go to the root of the case and cannot vitiate the order of cognizance.

Court noted that In terms of clause (c) of the proviso to section 142 of the NI Act, such complaint should be filed within one month after drawer of the cheque has received notice, and 15 days thereafter have elapsed. In this case, cause of action arose on 17.3.2018 and complaint was filed on 25.4.2018, i.e., after delay of 7 days and thus cognizance has wrongly been taken.

"Moreover, no petition for condoning the delay has been filed on behalf the complainant and without condoning delay, Court below has taken cognizance on the complaint which was barred by limitation," the Court said.

In view of the above, the court was of opinion that the cognizance order as well as the revisional one are bad in law. Hence, set aside.

Case Title: Amjad Ali Khan @ Guddu Khan versus The State Of Bihar

Citation: 2022 LiveLaw (Pat) 32