2015 (8) TMI 1547 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - delay of 5 days in filing the complaint - seeking condonation of delay in filing the complaint - Section 142(b) of Negotiable Instruments Act - rebuttal of evidences - HELD THAT - After going through the records the trial Court has come to the conclusion that the accused is not able to probablise the defence set up by him and therefore the offence punishable under Section 138-A of the Act is proved. The rebuttal evidence placed by the accused is not at all sufficient to discharge this burden to the effect that he has not committed any offence is the finding of the trial Court. Therefore the trial Court has come to the conclusion that the accused had received a sum of 1.5 lakhs from the complainant and the cheque marked as per Ex. P1 was issued for having received the said amount in discharge of the debt. Therefore he is stated to have committed the offence punishable under Section 138 of the Act. In the present case the complainant had filed an application under Section 5 of the Limitation Act supported by an affidavit sworn by him explaining the reasons for the delay of five days in filing the complaint. This aspect of the matter as argued by learned Counsel Sri.Ameet Kumar Deshpande has not been considered by the trial Court. But this aspect of limitation had been raised as one of the grounds before the First Appellate Court in the appeal filed under Section 374 of Cr.P.C. by the accused in Criminal Appeal No. 1/2014. In fact the present case stands on a higher footing than the facts found in Pawan Kumar Ralli s case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. In the present case there was a delay of five days and therefore the complainant has filed an application under proviso to Section 142 (b) of the Limitation Act which has come into effect on 06.02.2003. What is the sufficient cause for condonation of delay is dependent upon the facts of each case and delay may be liberally condoned without adopting a pedantic approach as held by the Hon ble Apex Court in the case of LAO Anantanay Vs. Khathij 1987 (2) TMI 61 - SUPREME COURT . The proviso to clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay such proceedings do not have any force of law. If delay is noticed the trial Court can even call upon the complainant to file an application for condonation of delay. Therefore it is expected of all the trial Courts dealing with offence punishable under Section 138 of N.I. Act to direct the office to put-up a specific note about the delay if any in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process the judge to specifically indicate that there is no delay in filing the complaint. The matter is remitted to the trial Court to pass appropriate orders on the application already filed for condonation for delay - petition allowed.

Summary

Issues:
Challenge to concurrent findings in Criminal Case No. 600/2007 and Criminal Appeal No. 1/2014 under Section 397 of Cr.P.C.

Analysis:
The petitioner was accused of an offence under Section 138 of the Negotiable Instruments Act, 1881, for allegedly issuing a cheque of Rs. 1.5 lakhs that bounced due to insufficient funds. The complainant alleged that the cheque was issued for a hand-loan and filed a complaint when the accused failed to repay despite a legal notice. The trial court found the accused guilty as he failed to prove his defense, leading to a conviction under Section 138-A of the Act.

The First Appellate Court upheld the trial court's decision, emphasizing that the accused's defense was not substantiated, and the complainant's evidence remained unchallenged. The main contention raised was the delay of five days in filing the complaint, which the trial court did not condone despite the provision under Section 142(b) of the Act.

The petitioner argued for quashing the proceedings based on the delay issue, citing a Supreme Court case for support. However, the respondent relied on a different case to counter this argument, emphasizing the legislative intent behind the proviso in Section 142(b) to address technicalities of limitation and ensure justice.

The High Court analyzed the legal provisions and case laws cited by both parties. It noted that the delay issue was not adequately addressed by the trial court or the First Appellate Court, leading to the conclusion that the proceedings should be quashed and remanded to consider the condonation of delay application. The Court stressed the importance of trial courts examining delay issues promptly and ensuring compliance with the provisions of the Act to maintain the legality of proceedings under Section 138.

In the final order, the High Court allowed the petition, quashed the proceedings, and remitted the matter to the trial court for consideration of the condonation application. The Court directed the trial court to dispose of the matter on merits within three months, highlighting the necessity of addressing delay issues promptly and ensuring compliance with the legal provisions under Section 138 of the Act.