2023 (8) TMI 842 - HC - Indian Laws

Dishonour of Cheque - delay of 34 days in filing the revision petition - sufficient cause for delay or not - presumption under Section 138 of the NI Act - HELD THAT - As far as the question of limitation is concerned, it is settled law that rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. In Apangshu Mohan Lodh Ors. Vs. State of Tripura Ors., 2003 (10) TMI 641 - SUPREME COURT , the Apex Court held that the power of condonation of delay is discretionary and is to be liberally construed. No doubt, delay is fatal to the case of any party but as far as possible the matter should be heard and decided on merits. In the instant case, there is a delay of 34 days, which should be condoned in order to decide the present case on merits - Secondly, it has been held by the learned Sessions Court that the defences raised by the petitioner that the respondent had never advanced any friendly loan and he did not have any financial capacity to lend any such huge amount of loan and that advancing of friendly loan is not accounted in the business of account and income tax returns are such defences which can only be decided once the parties lead their respective evidence before the trial court. In the instant case, the issuance of cheque is not denied by the petitioner and there is a presumption under Section 138 of the NI Act that the Court shall presume that the holder of a cheque received the cheque of the nature referred into Section 138 of the NI Act, for the discharge, in whole or in part or any debt or other liability. As far as the question of limitation is concerned, that part of the impugned order is set aside and delay in filing the revision petition is condoned. With these observations, the present petition is dismissed.

Summary

Issues:
The judgment involves the quashing of an impugned order and summoning order, consideration of legality in taking cognizance of an offence under Section 138 of the Negotiable Instruments Act, and the application for condonation of delay.

Quashing of Impugned Order and Summoning Order:
The petitioner filed a petition under Section 482 Cr.P.C. seeking to quash the orders passed by the Sessions Court and the Metropolitan Magistrate. The petitioner argued that the Sessions Court erred in summoning based on the complaint without considering the contents and documents provided. The petitioner also contended that the summoning order was challenged without being aware of the allegations. The petitioner further claimed that the cheque issued did not discharge any liability towards a friendly loan, lacking legal enforceability. The petitioner relied on legal precedents to support the case, emphasizing the necessity for a legally enforceable debt for an offence under Section 138.

Delay and Condonation of Delay:
The Principal Judge dismissed the revision petition primarily due to a delay of 34 days in filing the petition, finding the condonation application lacking sufficient cause. However, the power of condonation of delay is discretionary and should be liberally construed. The judgment cited relevant case law to emphasize the importance of deciding cases on merits despite delays. The judgment highlighted that delays should not hinder the pursuit of justice and that the matter should be heard on its merits. The judgment underscored the need for a balanced approach to ensure justice is served.

Requirement of Evidence and Trial:
The Sessions Court held that the defences raised by the petitioner regarding the friendly loan and financial capacity can only be determined through evidence presented during the trial. The issuance of the cheque was not disputed by the petitioner, invoking the presumption under Section 138 of the NI Act. The judgment emphasized that all defences raised require evidence and should be addressed during the trial. The court found no issue with the order stating that the matter necessitates evidence and that the petitioner can present defences during the trial. The judgment set aside the part of the order concerning limitation and condoned the delay in filing the revision petition.

Conclusion:
The judgment dismissed the petition while noting that the matter requires evidence and the petitioner can raise defences during the trial. The delay in filing the revision petition was condoned to ensure the case is decided on its merits. The judgment clarified that the dismissal of the petition does not indicate any opinion on the case's merits.