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TMI Blog2022 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of sub-section (1) of Section 142 of the NI Act, but, the complainant made the complaint to the court after 10 days of the expiry of such one month. In the instant case, learned trial Court acquitted the accused person, namely, Joy Deb on the ground that the complainant did not comply with the essential requirements of the provision as contemplated under Section 142(b) of the NI Act since the complaint was filed by the complainant after expiry of statutory period of limitation (thirty days) in terms of proviso appended to Section 138 of the NI Act - in the instant case, the Court took the cognizance wrongly, and further proceeding with the trial caused serious prejudice to both the complainant and the accused from rendering equitable justice to them. In this situation, in the opinion of this Court, it would be appropriate to remit the matter to the learned trial Court. The matter is remitted to the court of the learned Chief Judicial Magistrate, Agartala, West Tripura to proceed afresh keeping in mind the legal positions - Appeal allowed by way of remand. - CRL. A. NO.09 OF 2020 - - - Dated:- 30-5-2022 - HON BLE MR JUSTICE ARINDAM LODH For Appellant(s) : Mr. H.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the accusation as framed by the learned trial Court reads as follows: I, Sri R Bhattacharjee, Additional Chief Judicial Magistrate, West Tripura, Agartala, do hereby state the substance to you namely, Joy Deb as follows:- Allegation of the complainant is that you issued a cheque amounting to Rs.5 lakh to the cokplainant being No.001738 drawn on UBI, Ganaraj Chowmuni Branch, on 1.1.2015 and the complainant deposited the said cheque for encashment but the cheque was returned with memo dated 2.1.2015 and the complainant deposited the said cheque for encashment but the cheque was returned memo dated 2.1.2015 due to payment stopped by the drawer. Subsequently, the complainant issued a demand notice to you on 20.1.2015 and you received the notice but you did not pay the amount to the complainant within 15 days of receipt of the notice. It appears that you have committed an offence punishable under section 138 of the NI Act, and within my cognizance . 5. After perusal of the records, it is found that the complainant-appellant submitted his examination-in-chief and he was accordingly cross-examined. 6. On closure of the evidence of the complainant side, the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhowmik, learned counsel for the complainant in support of his submission had placed reliance upon the following judgments: (i) Subodh S.Salaskar Vs. Jayprakash M. Shah and another, (2009) 3 SCC (Cri) 834 (para 24), (ii) Sankar Choudhury Vs. State of Tripura and Another, (2019) 2 TLR 134 (para20). 10. On the other hand, Mr. Sumit Debnath, learned additional PP appearing on behalf of the State-respondent mainly focused on the fact that the complaint under Section 138 of the NI Act was filed beyond the prescribed period of limitation. 11. I have gone through the examination-in-chief submitted by the complainant as well as the relevant documents, the complainant had relied upon to substantiate his claim, which are as follows:- 1. Cheque bearing No.799026003 sic 001738 dated 01.01.2015 amounting to Rs.5,00,000/- which is marked as Exbt.1. 2. Deposit slip dated 01.01.2015 for the amount of Rs.5,00.000/- which is marked as Exbt.2. 3. Cheque return memo for an amount of Rs.5,00,000/- marked as Exbt.3. 4. Advocate s notice dated 20.01.2015 dated 20.01.2015 which is marked as Exbt.4. 5. Postal receipt dated 20.01.2015 which is marked as Exbt.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne month. 15. The question, which is required to be responded to, is whether before passing the order of condonation, the respondent No.1 had the right to be heard or not. The answer to the said question has already been settled by this Court in Sankar Choudhury (supra), where it is held that under Section 138 of the NI Act, if original complaint is filed after expiry of statutory period, then, in such cases, before condoning the delay, according to the proviso to Section 142 (b) of the NI Act, the accused shall be given a notice along with a copy of the application for condonation of delay. Upon hearing the parties (the complainant and the accused) the learned Magistrate shall decide whether the delay is to be condoned or not. If the Court is satisfied with the cause as assigned, in such application for condonation of delay, due cognizance may be taken or an appropriate order in the event of not condoning the delay may be passed by the learned Magistrate. 16. Again, in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42, the Apex Court held as under: 5. In our view, the High Court was perfectly justified in holding that the delay, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant is mandated to file an application for condonation of delay explaining sufficient and satisfactory reasons for such delay since the said proviso appended therein is substantive and not only procedural. On receipt of such condonation application, the Court has to issue notice on it along with a copy of the complaint and dispose of the same after giving the accused a reasonable opportunity of being heard. The Court would pass an appropriate order to the merits of the application of condonation of delay at its discretion. Without exhausting this stage, cognizance shall not be taken. 20. In the instant case, learned trial Court acquitted the accused person, namely, Joy Deb on the ground that the complainant did not comply with the essential requirements of the provision as contemplated under Section 142(b) of the NI Act since the complaint was filed by the complainant after expiry of statutory period of limitation (thirty days) in terms of proviso appended to Section 138 of the NI Act. To reiterate, in the case in hand, the complaint was filed before the court after 10 days of statutory period of 30 days without filing an application for condonation of delay, and no specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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