2024 (6) TMI 1455 - HC - Indian Laws

Dishonour of Cheque - cognizance of an offence under Section 138 of the Negotiable Instruments Act without first condoning the delay in filing the complaint beyond the prescribed period under Section 142(1)(b) of the NI Act - HELD THAT - Since Section 142 (1)(b) originally did not provide for taking cognizance of a belated complaint the argument that the Magistrate was required to condone the delay before taking cognizance and until then he did not possess jurisdiction cannot be a valid argument. If a Magistrate is empowered to condone the delay in presenting the complaint and then take cognizance the mere fact that he took cognizance first and then condoned the delay would be of little consequence. It is only if the Magistrate does not condone the delay at all during the pendency of the proceedings and goes on to adjudicate the matter will the proceedings be vitiated. In fact the Apex Court in the case of Pawan Kumar Ralli 2014 (8) TMI 608 - SUPREME COURT while dealing with the case in which the High Court had quashed the proceedings on the ground of limitation has observed that with a view to obviate the difficulties from a part of the complainant the Parliament has inserted the proviso to clause (b) of Section 142 of the NI Act in the year 2002 which conferred jurisdiction on the learned Magistrate to condone the delay. The Supreme Court has also observed that a litigant should not be deprived of the remedy provided in the legislature and a genuine litigant should be allowed to pursue his case against a defaulter by overcoming the technical difficulty of limitation. In the present case the taking of cognizance without condoning the delay would at best be a curable defect and by condoning the delay this irregularity stood cured. The learned Magistrate at the time of taking cognizance did not notice whether the complaint was within the prescribed time or not. The learned Magistrate was probably misled by the averment in the complaint at paragraph No.8 that it was within time - This order of the learned Magistrate reserving liberty to the accused and noticing that the cognizance had been taken even though there was a delay has been accepted by the accused and has not been challenged. The petitioner has presented this petition four years thereafter when orders have been passed by the learned Magistrate condoning the delay in presenting the petition. In light of the fact that the learned Magistrate has ultimately condoned the delay no prejudice has been caused to the accused by the cognizance already taken. Even if the contention advanced by the petitioner is accepted all that would have to be done is to set aside the order taking cognizance and call upon the learned Magistrate to consider the application of condoning the delay and then consider the question of taking cognizance. Since in the instant case the complaint is of the year 2013 and the matter has been pending for more than 11 years there would be no justification in considering this plea of the petitioner. Furthermore since the delay of merely 2 days in filing the complaint has already been condoned the cognizance taken though irregular cannot be found fault with as the irregularity has stood cured on the delay being condoned. Conclusion - i) The Magistrate did not err in taking cognizance before condoning delay. ii) The subsequent condonation of the two-day delay cured any irregularity. The petition challenging the proceedings on the ground of delay in filing complaint is dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

(a) Whether the learned Magistrate could take cognizance of an offence under Section 138 of the Negotiable Instruments Act without first condoning the delay in filing the complaint beyond the prescribed period under Section 142(1)(b) of the NI Act.

(b) Whether the delay in filing the complaint beyond the prescribed period can be condoned after cognizance has been taken, and if so, whether such condonation cures the irregularity in taking cognizance.

(c) The validity and effect of the order condoning the delay filed under Section 142 of the NI Act after cognizance was taken.

(d) The applicability and interpretation of the proviso to Section 142(1)(b) of the NI Act, especially in light of amendments and judicial precedents.

(e) Whether the delay in filing the complaint was bona fide and justifiable on the grounds stated by the complainant.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) & (b): Power of Magistrate to take cognizance without condoning delay and subsequent condonation of delay

Relevant legal framework and precedents: Section 142(1)(b) of the NI Act bars taking cognizance of complaints filed beyond one month from the date on which the cause of action arises, except where the complainant satisfies the Court of sufficient cause for delay. Originally, no power was conferred to take cognizance of belated complaints, but by amendment (Act No. 55 of 2002), a proviso was inserted empowering the Magistrate to condone delay and take cognizance thereafter.

Judicial precedents include the Supreme Court decision in Pawan Kumar Ralli v. Maninder Singh Narula, which held that the proviso was inserted to obviate difficulties faced by complainants and that a genuine litigant should not be deprived of remedy due to technical delay. The Court observed that cognizance taken without condoning delay does not vitiate proceedings if the Magistrate subsequently condones the delay.

Court's interpretation and reasoning: The Court held that the Magistrate's power to condone delay is not restricted to prior to taking cognizance. The sequence of taking cognizance first and condoning delay later is a curable irregularity and does not render the proceedings void. The crucial factor is that the Magistrate eventually condones the delay during the pendency of the proceedings. The Court emphasized that the legislative intent behind the proviso was to provide flexibility and avoid depriving genuine complainants of their remedy due to technicalities.

Key evidence and findings: The Magistrate initially took cognizance without noticing the delay, relying on the complaint's averment that it was filed within time. Subsequently, the Magistrate noted a two-day delay and reserved liberty to the accused to contest the delay at trial. Later, upon hearing both parties and considering medical evidence of viral fever, the Magistrate condoned the delay of two days.

Application of law to facts: The Court found that the Magistrate's initial taking of cognizance without condoning delay was an oversight but was rectified by the subsequent condonation order. The two-day delay was held to be bona fide and justified by medical grounds. The accused did not challenge the Magistrate's initial reservation of liberty to contest delay, and the condonation order was passed after hearing both sides.

Treatment of competing arguments: The petitioner contended that the Magistrate must condone delay before taking cognizance, relying on a coordinate Bench judgment that was overruled by later Supreme Court authority. The respondent argued that the Magistrate's power to condone delay can be exercised after cognizance and that the proviso to Section 142(1)(b) does not mandate prior condonation. The Court accepted the latter view, relying on the authoritative Supreme Court ruling and subsequent coordinate Bench decisions.

Conclusions: The Court concluded that the Magistrate's power to condone delay is not fettered by the timing of cognizance and that subsequent condonation cures the irregularity. The proceedings were not vitiated by the initial failure to condone delay before taking cognizance.

Issue (c): Validity and effect of the condonation order passed under Section 142 of the NI Act

Relevant legal framework: Section 142(1)(b) allows the Court to take cognizance after the prescribed period if sufficient cause is shown for delay.

Court's reasoning: The Court held that the application under Section 142 to condone delay was properly filed and considered after hearing both parties. The medical certificate produced was accepted as valid proof of sufficient cause. The Court rejected the accused's claim that the medical certificate was fake and that delay was 30 days instead of two days.

Application to facts: The delay was two days beyond the prescribed period, and the complainant's illness was a reasonable cause. The Magistrate's order condoning delay was therefore valid and effective.

Competing arguments: The accused disputed the genuineness of the medical certificate and contended a longer delay. The Court rejected these contentions on the evidence and reasoning of the Magistrate.

Conclusion: The condonation order was held to be valid, curing any defect arising from delay.

Issue (d): Interpretation of proviso to Section 142(1)(b) of the NI Act

Legal framework: The proviso was inserted by amendment to empower Magistrates to condone delay and take cognizance thereafter, reflecting legislative intent to avoid harsh consequences for minor or bona fide delays.

Court's interpretation: The proviso confers jurisdiction to condone delay irrespective of when the application is filed during proceedings. The Court emphasized that the Magistrate's jurisdiction to take cognizance is not lost merely because the complaint was filed late, provided the delay is condoned.

Precedents: The Court relied on the Supreme Court's ruling in Pawan Kumar Ralli and subsequent coordinate Bench decisions overruling contrary views.

Conclusion: The proviso is a substantive provision enabling curative jurisdiction and should be liberally construed to prevent injustice.

Issue (e): Bona fide nature of delay and sufficiency of cause

Evidence: The complainant produced a medical certificate showing treatment for viral fever from 04.10.2013 to 07.10.2013, which overlapped with the last permissible date for filing the complaint.

Court's findings: The Court accepted the medical certificate as genuine and found the delay of two days to be bona fide and justifiable.

Competing arguments: The accused challenged the certificate's authenticity and argued for a longer delay, but the Court did not find these arguments persuasive.

Conclusion: The delay was sufficiently explained and justified under the law.

3. SIGNIFICANT HOLDINGS

"The legislature has conferred expressed powers on the learned Magistrate to take cognizance even in respect of a belated complaint, if he is satisfied that the complainant had sufficient cause for the belated presentation. The fact as to whether the learned Magistrate condoned the delay after taking cognizance or whether he was required to first condone the delay and then take cognizance is a matter which does not, in any way, vitiate the taking of cognizance by the Magistrate."

"If cognizance is taken of an offence even when there is a delay in presentation of the offence, that would only be a curable irregularity. If the Magistrate subsequently notices that there was a delay in presenting the complaint and is satisfied that the complainant had sufficient cause for the belated presentation of the complaint and condones the delay, the irregularity in taking cognizance would stand cured."

"The argument that the Magistrate was required to condone the delay before taking cognizance and, until then, he did not possess jurisdiction, cannot be a valid argument."

"A litigant should not be deprived of the remedy provided in the legislature and a genuine litigant should be allowed to pursue his case against a defaulter by overcoming the technical difficulty of limitation."

"The taking of cognizance on a belated complaint would not vitiate the entire proceedings, and a litigant would have the right to seek consideration of his cause for the belated complaint even after cognizance has been taken."

"Since the delay of merely 2 days in filing the complaint has already been condoned, the cognizance taken, though irregular, cannot be found fault with, as the irregularity has stood cured on the delay being condoned."

Core principles established:

- The Magistrate's jurisdiction to take cognizance is not ousted by delay in filing complaint if the delay is condoned at any stage during proceedings.

- Delay condonation under the proviso to Section 142(1)(b) is a substantive power exercisable even after cognizance.

- The procedural irregularity of taking cognizance prior to condonation is curable and does not vitiate the proceedings.

- Genuine reasons such as illness constitute sufficient cause to condone delay.

Final determinations:

- The Magistrate did not err in taking cognizance before condoning delay.

- The subsequent condonation of the two-day delay cured any irregularity.

- The petition challenging the proceedings on the ground of delay in filing complaint was dismissed as devoid of merit.