2019 (6) TMI 1727 - HC - Indian Laws

Dishonour of cheque - Condonation of delay of 9 days in filing the complaint - dismissal of application without conducting an enquiry - sufficient cause was present or not is not perused - acquittal under Section 255(1) Cr. P.C. - HELD THAT - Section 142(b) of the NI Act states that such complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. A proviso was added to Section 142 of the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act 2002 (Act 55 of 2002). Before carrying out the amendment to Sections 138 to 142 a working group was constituted to make recommendation as to what changes were needed to effectively achieve the purpose of Section 138. Accordingly the relevant provision of the NI Act was amended and a new provision was added as Section 142(b) wherein it is stated that cognizance of a complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. In the statement of objects and reasons of Act 55 of 2002 it is stated that the existing provisions in the Negotiable Instruments Act 1881 namely Sections 138 to 142 in Chapter 17 have been found deficient while dealing with the dishonoured cheques. Courts are expected to dispose of such cases as per the procedure contained in the Act though it was noticed that the procedure to deal with such matters is cumbersome. Sufficient cause be shown in the complaint itself or in the application for condonation of delay or in the affidavit if any or in other materials which would be sufficient to satisfy the court that the complainant had sufficient cause for not filing the complaint within the specified period. It is further held that a detailed enquiry giving an opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide whether the delay deserves to be condoned. The accused has to be heard before condoning the delay. In Sarah Mathew v. Institute of Cardio Vascular Diseases 2013 (11) TMI 1587 - SUPREME COURT that the date relevant for computation of period of limitation is the date when the criminal complaint is filed or date of institution of prosecution/criminal proceedings and not the date when a court/Magistrate takes cognizance. The court below has not considered the factum as laid down in the decisions cited supra and without giving any proper explanation to the delay the complaint filed by the appellant/complainant was dismissed. The complainant has not offered any explanation for the delay in filing the complaint and accordingly the complaint was dismissed. The court below has not discussed or considered the application in detail and has not considered whether there was any sufficient cause on the side of the complainant to file the complaint after the prescribed period of limitation. It is true that the respondent/accused shall be heard before passing the order in the petition for condonation of delay. The court below has dismissed the application without conducting an enquiry on it and therefore the findings entered with regard to point No.4 in the judgment is erroneous. The matter is remanded to the court below to re- consider point No.4 alone after giving an opportunity to the appellant/complainant to give evidence regarding the delay in filing the complaint after the statutory period of limitation with notice to respondent/accused and dispose of the matter within three months from the date of receipt of a copy of this judgment - Appeal allowed in part.

Summary

Issues:
- Delay in filing the complaint under Section 138 of the Negotiable Instruments Act
- Applicability of Section 142(b) of the NI Act in condoning the delay

Analysis:
1. The appellant filed a complaint against the second respondent for an offence under Section 138 of the Negotiable Instruments Act. The court below dismissed the petition to condone a 9-day delay in filing the complaint, resulting in the accused's acquittal under Section 255(1) Cr.P.C. The main issue challenged in this appeal is the acquittal based on the delay in filing the complaint.

2. The court examined the provisions of Section 142(b) of the NI Act, which requires the complaint to be made within one month of the cause of action. The amendment to the Act added a provision allowing the court to condone the delay if the complainant shows sufficient cause. The court referred to the case of Abdurehiman v. Sethu Madhavan, emphasizing the burden on the complainant to justify the delay and the absence of a prescribed procedure for filing such complaints.

3. The appellant argued that the court can condone the delay under the amended Section 142(b) of the NI Act. The court noted that the date relevant for the limitation period is the date of filing the criminal complaint, not when the court takes cognizance. The court found fault with the lower court's dismissal of the complaint without proper consideration of any explanation for the delay.

4. Consequently, the High Court set aside the lower court's judgment and remanded the matter for re-consideration. The court directed the lower court to allow the appellant to present evidence regarding the delay in filing the complaint and provide an opportunity for the respondent to respond. The lower court was instructed to dispose of the matter within three months from the date of the High Court's judgment.

5. In conclusion, the appeal was partly allowed, emphasizing the importance of considering sufficient cause for delay in filing complaints under Section 138 of the NI Act and the applicability of Section 142(b) in condoning such delays.