2020 (5) TMI 341 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - summon of applicant to face trial under Section 138 of NI Act - HELD THAT - The present complaint was filed in 2006 after the amendment has came into force. Thus according to the proviso if the complainant has put forth the reason in the complaint itself for not filing the complaint within time and the learned Magistrate is satisfied that delay has been explained can take cognizance of the offence as such the said case is not applicable in the present facts and circumstances of the case. It is not incumbent upon the opposite party no.2 to file separate application for condoning the delay in filing the complaint in view of the proviso to Section 142 of the Act. The complainant had satisfied that she had sufficient cause for not making a complaint within the prescribed period as there is an explanation of the delay in filing the complaint the learned court below has committed no error in rejecting the objection of the applicant in the light of the amended proviso of Section 142 of the Act who however succeeded in getting the proceeding of the present case stalled for a long period. The other factual aspect of the case cannot be decided at the threshold, which is the subject matter of trial. Thus it cannot be said that the filing of complaint was barred by limitation, the learned Magistrate has rightly rejected the objection filed by the applicant by impugned order dated 18.10.2010 which does not call for any interference. The applicant has utterly failed to make out any case that the cognizance is bad in law, hence there is no justifiable reason to quash the proceeding pending against the applicant since 2010. The application is absolutely misconceived and is accordingly dismissed - application dismissed.

Summary

Issues Involved:
1. Quashing of proceedings under Section 138 of the Negotiable Instruments Act.
2. Validity of the complaint filed beyond the limitation period.
3. Issuance of non-bailable warrant against the applicant.

Issue-wise Detailed Analysis:

1. Quashing of proceedings under Section 138 of the Negotiable Instruments Act:
The applicant sought to quash the proceedings of Complaint Case No. 1288 of 2010, where he was summoned to face trial under Section 138 of the Negotiable Instruments Act. The applicant argued that the prosecution was malicious and the complaint was barred by limitation. The court observed that the cheque in question was dishonored due to "insufficient fund" and that a legal notice was sent to the applicant, which he allegedly did not receive. The trial court had earlier rejected the applicant's objections, and the High Court directed the trial court to first consider the maintainability of the complaint before proceeding with the trial. The trial court, upon reconsideration, found the complaint maintainable and within the prescribed time limit.

2. Validity of the complaint filed beyond the limitation period:
The applicant contended that the complaint was filed beyond the statutory period without any application for condonation of delay, citing the Supreme Court ruling in Subodh S. Salaskar Vs. Jayprakash M. Shah. However, the court noted that the proviso to Clause (b) of Section 142 of the Negotiable Instruments Act, added by the Negotiable Instruments (Amendment and Miscellaneous Provision) Act, 2002, allows the court to take cognizance of a complaint filed beyond the prescribed period if the complainant provides a sufficient cause. The complainant had explained the delay due to illness and provided a medical certificate. The court held that the amended provision does not require a separate application for condonation of delay, and the trial court was satisfied with the complainant's explanation, thus the complaint was deemed maintainable.

3. Issuance of non-bailable warrant against the applicant:
The court addressed the issuance of a non-bailable warrant against the applicant due to the stay on proceedings being lifted following the Supreme Court's decision in Asian Resurfacing of Road Agency Pvt. Ltd. and others Vs. Central Bureau of Investigation, which mandates that proceedings should not be stayed for more than six months. The applicant argued that the warrant should be quashed as the complaint was not maintainable. The court, however, found no error in the trial court's decision to issue the warrant and directed the applicant to appear before the trial court and apply for bail, which should be considered in accordance with the law.

Conclusion:
The court dismissed the application to quash the proceedings, vacated the interim order, and directed the applicant to appear before the trial court within three weeks to apply for bail. The court emphasized that the trial court should proceed expeditiously with the case on its merits, giving both parties an opportunity to be heard.