2020 (9) TMI 1063 - HC - Indian Laws

Condonation of delay in filing appeal - Dishonor of Cheque - time limitation prescribed under Section 142 of the N.I. Act - power of Magistrate to condone the delay - HELD THAT - As is well-known Section 138 of the N.I. Act lays down that timelines for issuing notice of repayment and if no such repayment is made for filing complaint before the Magistrate when a cheque upon its presentation has been dishonoured - What emerges from the said provision is that the Magistrate would not take cognizance of a complaint which is not made within one month of the date on which the cause of action in terms of Clause (c) of the proviso to Section 138 has arisen but the Magistrate has the discretion to take cognizance even beyond such period, provided the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. The provisions of Section 142 of the N.I. Act are akin to Section 473 of the Criminal Procedure Code which while providing for limitation for taking cognizance of certain offences, saves the power of the Court upon being satisfied of the sufficient cause for taking cognizance beyond the period of limitation. Impugned order set aside - petition allowed.

Issues:
Challenge to order taking cognizance under Section 138 of the Negotiable Instrument Act due to delay in filing complaint within the prescribed period.

Detailed Analysis:
1. The petitioner challenged the order dated 25.01.2018, where the Additional Chief Judicial Magistrate took cognizance of a complaint filed under Section 138 of the Negotiable Instrument Act against the petitioner for issuing a dishonored cheque.
2. The complainant alleged that the petitioner borrowed a sum of money and issued a cheque that bounced due to insufficient funds. The complainant issued a notice under Section 138 of the N.I. Act after the petitioner failed to repay the loan, leading to the filing of the complaint.
3. The petitioner's counsel argued that the complaint was filed beyond the limitation period specified in Section 142 of the N.I. Act and without the Magistrate passing an order to condone the delay, which would require hearing the accused.
4. The complainant's counsel contended that the Magistrate has the power to condone the delay without a separate application, as the delay was explained in the complaint itself.
5. Section 138 of the N.I. Act mandates timelines for issuing notice and filing a complaint when a cheque is dishonored. Section 142 allows the court to take cognizance after the prescribed period if the complainant shows sufficient cause for the delay.
6. The Magistrate has discretion to take cognizance beyond the prescribed period if the complainant provides a valid reason for the delay in filing the complaint.
7. Section 142 of the N.I. Act is similar to Section 473 of the Cr.P.C., which allows the court to extend the limitation period if satisfied with the reasons for the delay.
8. Legal precedents like Surinder Mohan Vikal and Srinivas Gopal emphasize the importance of considering limitation periods and the necessity of explaining delays in filing complaints.
9. In State of Maharashtra v. Sharadchandra Vinayak Dongre, it was held that delay condonation should not occur without notice to the accused and proper recording of reasons.
10. The judgment in P.K. Choudhury v. Commander, 48 BRTF (GREF) reiterated the requirement for hearing the accused before condoning delays in legal proceedings.
11. The High Court quashed the impugned order and directed the Magistrate to reconsider the reasons for the delay in filing the complaint, ensuring the accused is given an opportunity to present their case before any decision is made.

In conclusion, the judgment addressed the issue of delay in filing a complaint under Section 138 of the N.I. Act, emphasizing the importance of following legal procedures and providing opportunities for all parties to be heard before making decisions on condoning delays in legal proceedings.

← Previous Next →