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2014 (12) TMI 1394 - HC - Indian LawsDishonor of Cheque - Jurisdiction - power of Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint - HELD THAT - Factually, the statutory notice under Section 138 of The Negotiable Instruments Act issued by the respondent was received by the petitioner on 26.05.2005. As per Section 138 of The Negotiable Instruments Act, though the period of limitation expired on 11.07.2005, the complaint was admittedly presented before the learned Magistrate only on 12.07.2005. It was returned by the learned Magistrate repeatedly and finally cognizance was taken on 22.01.2007. As held by the Honourable Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy 1993 (4) TMI 326 - SUPREME COURT , so far as the offence under Section 138 of The Negotiable Instruments Act is concerned, if there is a delay in presenting the complaint, the same requires to be satisfactorily explained only by the complainant and the Court cannot condone such delay in the interest of justice as it could be done under Section 473 Cr.P.C. Therefore, it is absolutely necessary for the Court to examine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Section 473 Cr.P.C. In Sarah Mathew v. Institute of Cardio Vascular Diseases 2013 (11) TMI 1587 - SUPREME COURT , the Honourable Supreme Court has held that for computing the period of limitation, the crucial date shall be the date of presentation of the complaint. If the date of presentation of the complaint is beyond the period of limitation prescribed under Section 142 of The Negotiable Instruments Act, it is absolutely necessary for the complainant to explain such delay by showing sufficient cause. In the case on hand, admittedly, no such petition was filed and no such explanation was offered. But, the lower Court, without noticing that there was a delay in presenting the complaint, has inadvertently taken cognizance. Had the lower Court noticed the delay, it would have called upon the respondent herein to explain the delay. Thus there was some error on the part of the lower Court. In the instant case, the order of the learned Magistrate taking cognizance deserves to be set aside and the matter needs to be remanded back to the lower Court with a liberty to the respondent herein to file an appropriate petition seeking condonation of delay by showing sufficient cause - Petition closed.
Issues Involved:
1. Extent of the power of a Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint under Section 138 of The Negotiable Instruments Act. 2. Whether the delay in filing the complaint was properly condoned by the lower Court. 3. Legal provisions and precedents applicable to condonation of delay in criminal cases. Detailed Analysis: Issue 1: Extent of the Power of a Judicial/Metropolitan Magistrate to Condon the Delay The primary issue in this case is the extent of the power of a Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint under Section 138 of The Negotiable Instruments Act. The court noted that prior to the Amendment Act 55 of 2002, there was no enabling provision in The Negotiable Instruments Act for condonation of delay in taking cognizance of an offence under Section 138. The amendment introduced a proviso to Section 142, enabling a Magistrate to take cognizance of an offence after the prescribed period if the complainant satisfies the court that there was sufficient cause for the delay. Issue 2: Whether the Delay in Filing the Complaint was Properly Condoned The petitioner argued that the order of the learned Magistrate taking cognizance of the offence was barred by limitation. The complaint was presented one day after the expiration of the limitation period. The court observed that the lower Court had inadvertently taken cognizance without noticing the delay, which should have prompted the court to call upon the respondent to explain the delay. Since no petition for condonation of delay was filed, the Magistrate's cognizance of the complaint was erroneous. Issue 3: Legal Provisions and Precedents Applicable to Condonation of Delay The court examined various legal provisions and precedents to determine the correct approach for condonation of delay. It compared Section 473 of the Code of Criminal Procedure, Section 5 of the Limitation Act, and the proviso to Section 142 of The Negotiable Instruments Act. The court noted that Section 473 Cr.P.C. allows for condonation of delay in the interest of justice even if no explanation is provided, whereas Section 5 of the Limitation Act and the proviso to Section 142 of The Negotiable Instruments Act require the complainant to show sufficient cause for the delay. The court referred to the Supreme Court's judgment in Vanka Radhamanohari v. Vanka Venkata Reddy, which highlighted the difference in language between Section 5 of the Limitation Act and Section 473 Cr.P.C. It emphasized that the Magistrate cannot condone the delay in the interest of justice under Section 142 of The Negotiable Instruments Act without a satisfactory explanation from the complainant. The court also cited Sarah Mathew v. Institute of Cardio Vascular Diseases, where the Supreme Court held that the crucial date for computing the period of limitation is the date of presentation of the complaint. If the complaint is presented beyond the limitation period, the complainant must satisfactorily explain the delay. Conclusion The court concluded that the respondent should be given an opportunity to file a petition seeking condonation of the delay by showing sufficient cause. The order of the learned Magistrate taking cognizance was set aside, and the matter was remanded back to the lower Court. The respondent was directed to file a miscellaneous petition with an affidavit seeking condonation of delay, and the lower Court was instructed to consider the same and proceed in accordance with law. In summary, the court allowed the Criminal Original Petition, set aside the order of the learned Magistrate, and provided the respondent with the opportunity to seek condonation of delay, thereby ensuring that justice is served while adhering to legal provisions and precedents.
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