2020 (7) TMI 418 - HC - Indian Laws

Condonation of delay in service of SCN - Time Limitation - Dishonor of Cheque - insufficient funds - offence punishable under section 138 of Negotiable Instruments Act, 1881 - It is contended that the accused deliberately issued the cheque without maintaining the required balance in his account and he had also not repaid the cheque amount after receipt of the legal notice - HELD THAT - By way of amendment w.e.f. 6-2-2003, the proviso to Section 142 (1)(b) was appended to, thereby enabling the Court to condone the delay in filing the complaint, if the complainant is successful in satisfying the Court about the sufficient cause for not making the complaint within time. Admittedly the complainant had filed I.A.No.1 seeking condonation of delay even though I.A.No.1 is filed under section 141 of the Act. It is well settled proposition of law that quoting of the wrong provision of law cannot be a ground to reject the application. The complainant produced the postal endorsement issued by the Department of Posts dated 4-1-2010 in reply to the complaint dated 09-12-2009, enquiring about Registered Letter acknowledgement Due bearing No. 1705 dated 27-10-2009 and informing that the said RLAD has been delivered on 28-10-2009. Therefore it was clear that even though the Registered Letter with acknowledgement Due was issued on 27-10-2009, addressing the accused, the complainant had not received any intimation regarding its service and it was only on 4-1-2010, the complainant was intimated regarding its service. This reason assigned by the complainant in the application cannot be said to be unreasonable - If the complaint is to be dismissed on technical ground i.e. on delay of about 13 days, that will amount to preventing the complainant at the threshold level, without affording him an opportunity to put forth his contention on merits. Even if delay of the said 13 days is to be condoned, no prejudice will be caused to the accused and he can very well contest the matter on merits. The delay caused in filing the complaint may be condoned in the interest of justice - the impugned order passed by the trial Court is liable to be set aside, the complaint is to be restored on file and the matter is to be remanded back to the trial Court to try the same in accordance with law.

Summary

Issues Involved:
1. Delay in filing the complaint under Section 138 of the Negotiable Instruments Act.
2. Application of Section 141 of the Act for condonation of delay.
3. Legal sufficiency of reasons provided for delay.
4. Jurisdiction of the trial court to take cognizance of the complaint.

Detailed Analysis:

1. Delay in Filing the Complaint:
The appellant, as the complainant, filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 of IPC, alleging that the accused issued a cheque for ?50,000 which was dishonored due to insufficient funds. The complainant issued a legal notice on 27-10-2009, which was served on the accused on 28-10-2009. However, the complainant only received confirmation of service from the postal authorities on 4-1-2010. Consequently, the complaint was filed on 18-1-2010, beyond the prescribed period, necessitating an application for condonation of delay.

2. Application of Section 141 of the Act:
The complainant filed an application under Section 141 of the Act to condone the delay in filing the complaint. The accused contested this, arguing that Section 141 was inapplicable and that the reasons provided were insufficient. The trial court dismissed the application and the complaint, citing inordinate delay and lack of sufficient cause.

3. Legal Sufficiency of Reasons Provided for Delay:
The complainant argued that the delay was due to the time taken to receive confirmation from the postal authorities regarding the service of the legal notice. The court noted that although the complaint was filed 13 days after receiving the postal endorsement, this delay was not inordinate. The court emphasized that the delay of 13 days should not prevent the complainant from prosecuting the accused, as it would deny the complainant an opportunity to present the case on merits.

4. Jurisdiction of the Trial Court to Take Cognizance:
The court referenced the proviso to Section 142 of the Act, which allows for the condonation of delay if the complainant shows sufficient cause. The court distinguished the present case from the precedent cited by the respondent (T.S. Mulidhar v. H. Narayana Singh), where no application for condonation of delay was filed. It was held that the trial court erred in dismissing the application for condonation of delay based on the precedent, as the facts were not analogous.

Conclusion:
The court concluded that the trial court's decision to dismiss the application for condonation of delay was erroneous. The delay of 13 days was not inordinate and did not prejudice the accused. Therefore, the appeal was allowed, the impugned order was set aside, and the delay in filing the complaint was condoned. The case was remanded back to the trial court for disposal in accordance with law, with directions for both parties to assist in an expedited trial.

Order:
The appeal is allowed. The impugned order dated 11-2-2011 is set aside. I.A. No. 1 filed by the complainant for condonation of delay is allowed. The complaint is restored and remitted back to the trial court for disposal in accordance with law. Both parties are directed to appear before the trial court within 30 days. The registry is directed to send back the trial court records with a copy of this judgment.