2014 (3) TMI 1197 - HC - Indian Laws

Dishonor of Cheque - condonation of delay in presenting the appeal - Section 143 of N.I. Act - HELD THAT - The accused has already appeared before the trial Court and enlarged on bail under Section 436 of Cr.P.C. It is urged before this Court, that the cognizance taken by the learned Magistrate is bad in law unless Section 142 application is allowed. In the event of the Magistrate coming to the conclusion that no substantial ground is made out for condoning the delay of the threshold itself, the complaint can be dismissed. Therefore, such opportunity was lost so far as accused is concerned. Even if the Magistrate is of the opinion that the said application has to be considered, after providing opportunity to the accused, then also the Magistrate can take cognizance by means of mentioning in the order that the consideration of the application is deferred after appearance of the accused. But such order has not been passed by the learned Magistrate. The Magistrate has committed a serious error in not considering the application under Section 142(b) of the Negotiable Instruments Act, 1881 Act, at the initial stage. Therefore, though it is an irregularity, but, in my opinion, it is not the curable defect. Because of the simple reason, that if the Magistrate for any reason does not condone the delay in filing the complaint, it stand result in dismissal of the complaint - it is just and necessary to remit the matter to the Magistrate to consider the said application first and then pass appropriate orders, if necessary. The matter stands remitted to the JMFC IV Court, Belgaum, with a direction that the Magistrate either has to pass orders on the application filed under Section 142(b) of the N.I. Act or if the Magistrate is of the opinion that application has to be disposed of after appearance of the accused specifically passing such order, Magistrate can proceed against such accused persons.

Summary

Issues Involved:
Improper consideration of application under Section 142(b) of the Negotiable Instruments Act, 1881 by the Magistrate.

Analysis:
The judgment by K.N. Phaneendra, J. revolves around the improper consideration of an application under Section 142(b) of the Negotiable Instruments Act, 1881 by the Magistrate. The petitioner's counsel argued that the respondent had filed a private complaint under Section 138 of the N.I. Act, along with an application under Section 142(b) to condone the delay in presenting the complaint. The Magistrate, however, proceeded to take cognizance without addressing the said application. The complainant admitted to a delay in lodging the complaint and filed the application along with an affidavit. The Magistrate's order did not mention the application under Section 142(b) nor whether it was allowed or rejected. The judge noted that the Magistrate's failure to consider the application was a serious error, as it could lead to dismissal of the complaint if the delay was not condoned.

The judge observed that the Magistrate's actions were irregular and not curable, as failing to consider the application could result in dismissal of the complaint. Therefore, the judge deemed it necessary to remit the matter back to the Magistrate for proper consideration of the application under Section 142(b) of the N.I. Act. The judge directed the Magistrate to either pass orders on the application or defer its consideration after the appearance of the accused. The order of the Magistrate taking cognizance and issuing summons against the accused was set aside, and the matter was remitted to the Magistrate to proceed in accordance with the law from the stage of registering the private complaint against the accused. The judgment emphasizes the importance of following due process and considering all relevant applications before taking further legal actions in such cases.