K.S. JOSEPH versus PHILIPS CARBON BLACK LTD. & ANR.

Citation: [2016] 2 S.C.R. 914 · Decided: 11-04-2016 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2016] 2 S.C.R. 914 
K.S. JOSEPH 
v. 
PHILIPS CARBON BLACK LTD. & ANR. 
(Criminal Appeal No.24 7 of2016) 
APRIL 11, 2016 
[DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.] 
Negotiable Instruments Act, 1881 - s. 138 - Code of Criminal 
Procedure, 1973 - ss. 145, 200, 202 - Complaint uls. 138 against 
the appellant - Appellant sought quashing of order of cognizance 
and issuance of swiunons -Appellant's case that there was delay of 
62163 days in filing the complaint and summons were issued without 
applying the mind to the issue of delay; that cognizance could not 
have been taken without examining.the complainant 011 solemn 
affirmation; and that the appellant being an accused and a resident 
of an area outside the territorial jurisdiction of the Magistrate who 
has issued summons, the enquiry uls. 202 Cr.P.C. was not done -
Rejection by High Court - On appeal, held: Non-obstante clause 
in sub-section (1) of s. 145 is self-explanatory and over-rules the 
requirement of examination oft he complainant on solemn affirmation 
uls. 200 Cr.P.C. - Complainant entitled to give his evidence on 
affidavit and subject to all just exceptions, the same has to be read 
in evidence in any enquiry, trial or other proceeding under Cr.P.C., 
thus, plea based on s. 200 untenable - Court can take cognizance 
even after the prescribed period but only if the complainant satisfies 
the court that he had sufficient cause for not making complaint 
within the prescribed period - Magistrate did not apply mind either 
to the issue of delay or lo the requirement of s.202 Cr.P.C. - As 
such, the correctness of submission based upon s. 202 Cr.P.C. and 
as to whether such requirement of enquiry or investigation is attracted 
even to a case under the Act, is left open - However, on the wound 
of non-application of mind to the issue of delay and since the High 
Court passed a summmy order, the order of the High Court and the 
Magistrate, set aside - Magistrate to re-consider the issue of delay, 
its condonation, as well as requiremelll of enquiry u!s. 202 Cr.PC. 
914 
K.S. JOSEPH v. PHILIPS CARBON BLACK LTD. 
915 
Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore 
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2010 (1) SCR 219:(2010) 3 SCC 83 - relied on. 
P.K. Choudhury v. Commander, 48 BRTF (GREF) 2008 
(4) SCR 976:(2008) 13 SCC 229; Vijay Dhanuka v. 
Najima Mamtaj 2014 (4) SCR 171:(2014) 14 SCC 638 
- referred to. 
Case Law Reference 
2010 (l) SCR 219 
2008 (4) SCR 976 
2014 (4) SCR 171 
relied on 
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referred to 
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
247 of2016. 
WITH 
Criminal Appeal No. 248 of2016 
From the Judgment and Order dated 04.09.2012 of the High Court 
ofKerala at Ernakulam in Crl. M. C. No. 2902 of2012. 
K. Radhakrishnan, Sr. Adv., Navin Prakash, Adv., with him for 
the Appellant. 
E. M. S. Anam, Ms. Liz Mathew, M. F. Philip, Advs., for the 
Respondents. 
The Judgment of the Court was delivered by 
SHIVA KIRTl SINGH, J. I. By the common impugned order 
dated 04.09.2012 passed in Crl.M.C. Nos.2902 and 2903 of2012 by the 
High Court of Kerala at Ernakulam under Section 482 of the Code of 
Criminal Procedure (for short, 'Cr. P.C.') prayer of the appellant to 
quash order of cognizance and issuance of summons in a case under 
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred 
to as 'the Act') has been rejected by a very short and summary order to 
the effect that submissions were not impressive and ifthe appellant has 
any sustainable ground of defence, he can canvass the same before the 
Magistrate. 
2. The appellant is an accused in two cases of similar nature 
wherein cheques issued by the accused person in favour of the 
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916 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
complainant have not been honoured. On behalf of appellant it was 
highlighted that the cheques bounced on 24.01.2006 because of a direction 
to stop payment issued by the appellant because he had allegedly already 
made all the required payments. His defence that five blank cheques 
had been given to the complainant by way of security cannot be considered 
at the present stage but he has raised three other legal grounds. Firstly, 
the complaint suffered from delay of62/63 days and the same had to be 
condoned after notice but that was not done. The second grievance of 
the appellant is that cognizance could not have been taken without 
complying with the mandate of Section 200 of th

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