LexSUBODH S. SALASKAR versus JAYPRAKASH M. SHAH & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
,4 [2008] 11 S.C.R. 681 _. SUBODH S. SALASKAR A V. JAYPRAKASH M. SHAH & ANR. (Criminal Appeal No.1190 of 2008) AUGUST 1, 2008 B ~ [S.B. SINHA AND CYRIAC JOSEPH, JJ.] Negotiable Instruments Act, 1881; Ss. 138 and 142 with proviso to clause (b) of s. 142 inserted by Amendment Act, 2002: c ... Dishonour of Cheque - Delay in filing complaint - Held: - Ex-facie complaint was barrf?d by limitation - However, no application for condonation of delay was filed - Though power to condone the delay in fifing complaint after expiry of period . of limitation conferred upon the Court in terms of proviso to D ~ clause (b) of s. 142 but it could not have been given retro- spective effect - Courts below erred in applying the proviso to the facts of the instant case - Direction to issue summons on the appellant, therefore, illegal and without jurisdiction, hence, ...... nullity. E Code of Civil Procedure, 1908; 05. Rr. 9 (5) - Notice - Presumption of service - Discussed - Evidence Act, 1872 - s.114. General Clauses Act - Section 27 - Service of Notice - F --1 Ingredients of Penal Code, 1860; s. 420 /PC - Applicability of - Dis- honor of Cheque - Complaint - Amendment in complaint adding s. 420 /PC therein - Held: The Court had no jurisdic- tion to allow amendment of complaint petition at a later stage G \ adding s. 420 /PC in the complaint - Post-dated Cheques "'1 ~ were issued for repayment of loan amount issued in the year 1996 when accounts were operative, however, presented to 681 H 682 SUPREME COURT REPORTS [2008) 11 S.C.R. A the Bank on January 10, 2007 - Even assuming that account was closed, subsequently, it cannot be said that appellant had an intention to cheat the complainant - Moreover, allegations made in the complaint petition, even if taken to be correct in its entirety, do not disclose commission of offence uls. 420 B. /PC. Appellant had taken a financial loan from respondent No.1, which was allegedly paid by him vide two post-dated Cheques. Respondent No.1 claimed that when the Cheques were presented, they were returned by the Bank C with the remarks that the account was not in operation. However, the appellant paid the amount of loan in cash. Respondent No.1 sent a notice to the appellant on Janu- ary 17, 2001 and then filed a Complaint Petition against him on April 20, 2001. The complaint was sought to be D amended for adding s. 420 IPC, which was allowed by the Court. Appellant filed an application for discharge,· which was dismissed by the trial Court. Revision Petition was dismissed by the Sessions Court. Appellant chal- lenged the order by filing a writ petition, which was dis- E missed by the High Court holding that the question as to whether the complaint is barred by limitation is a mixed question. of law and fact. Even otherwise as a· result of amendment of Clause (b) of Section 142 of the Act even if delay has been caused in filing the complaint, the Magis- F trate has power to condone the delay; and that although the Magistrate could not have allowed amendment of the complaint petition but as it discloses sufficient averments in regard to commission of an offence under Section 420 . of Indian Penal Code, the Trial Court was justified in issu- G:'.~· )ng the process in respect of the said provision also. Hence . t' the present appeal. . · ·.Appellant contended that th~ High Court committed a serious error in passing the impugned judgment inso- far as it failed to take into consideration that the complaint H petition was barred by limitation, which would be evident ~- 1 f, SUBODH S. SALASKAR v. JAYPRAKASH M. 683 SHAH & ANR. ~ from the admitted facts; that the proviso appended to A Clause (b) of Section 142 of the Negotiable Instruments Act being substantive in nature cannot be held to be ret- rospective in operation; that the allegations made in the complaint petition even if given face value and taken to be correct in their entirety, no case has been made out for B ~ taking cognizance under Section 420 of the Indian Penal Code; that in any event, as the principal complaint being for commission of an offence under Section 138 of the Act was not maintainable, the application for amendment to insert Section 420- of the Indian Penal Code was also c not maintainable. Respondent No. 1 submitted that the date of service of notice being not fixed and the complainant having asked the post office to disclose the date of a
Excerpt shown. Read the full judgment & AI analysis in Lexace.