2022 (6) TMI 37 - HC - Indian Laws

Dishonor of Cheque - acquittal of the accused - sufficient cause for making the complaint within such prescribed period or not - clause (b) of sub-section (1) of Section 142 of the NI Act - HELD THAT - It is clear that if a complaint is filed beyond the statutory period, as prescribed under Section 138 of the NI Act, then, the complainant must satisfy the court that he had sufficient cause for not making the complaint within such prescribed period, i.e. within one month of the date the cause of action arises under the proviso (c) of Section 138 of the NI Act. In the instant case, the cause of action arose to make the complaint to the court when the drawer of the cheque i.e. the respondent no. 1 failed to make the payment of the amount mentioned in the cheque to the complainant within 15 (fifteen) days of the receipt of the demand notice served upon the respondent no.1 by the complainant. The cause of action of making the complaint to the court arose after expiry of 15 (fifteen) days and the complaint ought to have filed within next 30 (thirty) days as embodied under clause (b) of sub-section (1) of Section 142 of the NI Act, but, the complainant made the complaint to the court after 10 days of the expiry of such one month. In the instant case, learned trial Court acquitted the accused person, namely, Joy Deb on the ground that the complainant did not comply with the essential requirements of the provision as contemplated under Section 142(b) of the NI Act since the complaint was filed by the complainant after expiry of statutory period of limitation (thirty days) in terms of proviso appended to Section 138 of the NI Act - in the instant case, the Court took the cognizance wrongly, and further proceeding with the trial caused serious prejudice to both the complainant and the accused from rendering equitable justice to them. In this situation, in the opinion of this Court, it would be appropriate to remit the matter to the learned trial Court. The matter is remitted to the court of the learned Chief Judicial Magistrate, Agartala, West Tripura to proceed afresh keeping in mind the legal positions - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Delay in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881.
2. Condonation of delay without giving an opportunity to the accused.
3. Legal requirements under Section 142(b) of the Negotiable Instruments Act, 1881.

Issue-wise Detailed Analysis:

1. Delay in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881:
The complainant filed the complaint after a delay of 10 days beyond the statutory period of 30 days as prescribed under Section 138 of the NI Act. The trial court noted that the complaint was filed beyond the limitation period without a formal application for condonation of delay, which is a mandatory requirement under Section 142(b) of the NI Act.

2. Condonation of delay without giving an opportunity to the accused:
The trial court proceeded with the trial without formally condoning the delay and without providing an opportunity to the accused to be heard on the matter of delay. This procedural lapse was highlighted by the defense, arguing that the delay could not be condoned without notice to the accused and without recording reasons for such condonation. The High Court referenced prior judgments, including Sankar Choudhury Vs. State of Tripura and Another, and State of Maharashtra v. Sharadchandra Vinayak Dongre, to emphasize that the accused must be given a notice and a hearing before condoning the delay.

3. Legal requirements under Section 142(b) of the Negotiable Instruments Act, 1881:
Section 142(b) mandates that a complaint must be filed within one month of the cause of action arising, with a proviso allowing for condonation of delay if the complainant satisfies the court that there was sufficient cause for not filing within the prescribed period. The High Court clarified that this provision is substantive and not merely procedural. The complainant must file an application for condonation of delay, and the court must issue a notice to the accused and decide on the application after hearing both parties. In this case, the trial court failed to follow this procedure, leading to the wrongful taking of cognizance and subsequent trial.

Judgment and Order:
The High Court set aside the trial court's judgment of acquittal on the grounds that the trial court did not comply with the mandatory requirements of Section 142(b) of the NI Act. The matter was remitted to the Chief Judicial Magistrate, Agartala, West Tripura, to proceed afresh, ensuring compliance with the legal requirements. The trial court was directed to fix a date within two weeks for the complainant to take appropriate steps, failing which the court could pass necessary orders in accordance with the law. The appeal was disposed of and allowed in these terms.