2023 (8) TMI 462 - HC - Indian Laws

Dishonour of Cheque - complainant filed the complaint on the basis of notice posted on second occasion - complaint dismissed on the ground of being time barred - opportunity to the complainant to explain delay occurred or not - HELD THAT - The Hon ble Supreme Court in case of BIRENDRA PRASAD SAH VERSUS THE STATE OF BIHAR AND ORS. 2019 (5) TMI 1912 - SUPREME COURT dealt with similar situation. When the notice is sent on first occasion and when no service proof is available and when notice is posted on second occasion, what should be the approach of the trial Court is discussed and it was held that The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. The observation in case Birendra Prasad Sah will be applicable except with one modification. There was no prayer for condonation of delay in present complaint. But foundation is there. Complainant has pleaded why notice was sent by U.P.C. During evidence, he has also produced the envelopes which were unclaimed. This Court feels that the litigant should not suffer for want of necessary prayers for condonation of delay. The prosecution under Negotiable Instruments Act is quasi civil. The appellant needs to be given an opportunity to pray for condonation of delay. This Court has not given any findings on other issues. At the same point, the complainant needs to be saddled with cost of Rs.5,000/- If the delay is condoned there is no need to adduce fresh evidence - appeal allowed.

Summary

Issues involved:
The judgment involves the dismissal of a complaint under Section 138 of the Negotiable Instruments Act by the Court of 11th Jt. Judicial Magistrate First Class, Pune, based on the grounds of delay in filing the complaint. The key issues include whether the trial court was correct in dismissing the complaint as time-barred, whether the trial court should have allowed the complainant to explain the delay, and what order should be passed in this regard.

Issue 1: Dismissal of Complaint as Time-Barred
The trial court acquitted the respondent due to the complaint not being filed in time after the notice was sent on two occasions. The appellant argued that the trial court should not have dismissed the complaint once the process was issued and the case proceeded. The appellant relied on legal precedents to support the argument that the delay should have been condoned or the complainant should have been given an opportunity to explain the delay.

Issue 2: Opportunity to Explain Delay
The appellant contended that the trial court should have either condoned the delay or allowed the complainant to provide an explanation for the delay. The respondent's counsel supported the trial court's order, stating that there was no obligation on the trial court to condone the delay, especially when the complainant did not request such condonation. The evidence presented during the trial indicated that the notices sent to the accused were not claimed, leading to the delay in filing the complaint.

Issue 3: Application of Legal Precedents
The judgment referred to legal precedents, including the case of T. S. Muralidhar vs. H. Narayana Singh and K. Bhaskaran Vs. Sankaran Vaidhyan Balan, to argue the proper approach in cases involving delay in filing complaints under the Negotiable Instruments Act. The judgment highlighted the importance of considering the dates of notice issuance, receipt, and the subsequent actions taken by the parties involved in determining the timeliness of the complaint.

Separate Judgment by the Court:
The Hon'ble Court allowed the appeal, setting aside the trial court's order and granting the complainant the opportunity to seek condonation of the delay in filing the complaint from the date of the cause of action based on the first notice. The court directed the parties to appear before the trial court for further proceedings and imposed a cost on the appellant for the delay. The trial court was instructed to decide on the condonation application promptly and dispose of the case within a specified timeframe.