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2023 (8) TMI 400 - HC - Indian LawsDishonour of Cheque - condonation of delay in filing application - delay not explained - HELD THAT - It is not in dispute that the complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act and on the ground of delay alone the aforesaid was rejected. An application was filed by the complainant under Section 142 of the Negotiable Instruments Act along with the complaint case, in which he has stated that the postal receipt could not be received though the notice was issued on 28.02.2018 and later on he enquired from the postal department and obtained the postal receipt which is a necessary document to establish the fact that mandatory notice was issued to the accused. It is well settled principle of law that the case should be decided on its merits rather than technicalities. As there is provision to condone the delay, the learned revisional Court has rightly condoned the delay of 90 days caused in filing of the complaint case under Section 138 of the Negotiable Instruments Act. The Hon'ble Supreme Court while dealing with similar issue in the case of Pawan Kumar Ralli 2014 (8) TMI 608 - SUPREME COURT has held that In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation. In view of the judgment rendered by Hon'ble Supreme Court in the case of Pawan Kumar Ralli, there are no reason to interfere with the order passed by the learned revisional Court - petition dismissed.
Issues Involved:
1. Validity of the order passed by the Additional Sessions Judge allowing the revision and setting aside the JMFC's order. 2. Explanation and condonation of delay in filing the complaint under Section 138 of the Negotiable Instruments Act. 3. Applicability of relevant Supreme Court judgments on the issue of delay and limitation under the Negotiable Instruments Act. Summary: Issue 1: Validity of the Order by Additional Sessions Judge The petitioner challenged the order passed in Criminal Revision No.401/2018 by the 9th Additional Sessions Judge, Raipur dated 03.12.2018, which allowed the revision preferred by the complainant and set aside the JMFC's order dated 01.08.2018. The JMFC had dismissed the unregistered case filed under Section 138 of the Negotiable Instruments Act due to the complainant's failure to disclose when the application regarding postal acknowledgment was moved before the postal department. Issue 2: Explanation and Condonation of Delay The respondent filed a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the IPC, alleging that a cheque issued by the petitioner was dishonored. The complainant issued a legal demand notice on 28.02.2018 but did not receive the postal acknowledgment until 22.05.2018. The complaint was filed on 30.05.2018. The trial court dismissed the complaint due to the delay, but the revisional court found the delay to be bonafide and explained. Issue 3: Applicability of Supreme Court Judgments The petitioner argued that the delay of 92 days was not adequately explained and cited the Supreme Court judgment in Econ Antri Limited Vs. Rom Industries Limited, emphasizing that the delay cannot be condoned under the special provisions of the Negotiable Instruments Act. However, the court noted that the judgment in Econ Antri Limited did not directly address the issue at hand. The court referred to the Supreme Court judgment in Pawan Kumar Ralli Vs. Maninder Singh Narula, which emphasized the discretion of courts to condone delays under the proviso to Section 142(b) of the Negotiable Instruments Act to avoid technicalities and ensure cases are decided on their merits. Conclusion: The court concluded that the revisional court rightly condoned the delay, considering the legislative intent and principles laid down by the Supreme Court. The petition was dismissed, upholding the order of the revisional court.
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