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TMI Blog2025 (4) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... s Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. The petitioner is facing trial in CC No. 6073/2022 titled as "Amarendra Dhari Singh v. Aditi Singh" for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to 'NI Act'). The respondent herein who is supposedly maternal uncle of the present petitioner had filed the aforesaid complaint with respect to dishonour of a cheque bearing No. 000118 dated 30.03.2022 for an amount of Rs. 5,00,00,000/- (Five Crore Rupees) drawn on HDFC Bank, Ved Mansion Branch, which was subsequently presented in HDFC Bank, South Extension-I Branch. The petitioner was summoned by the learned Metropolitan Magistrate vide impugned summoning order dated 13.09.2022. The only ground urged before this Court in the present petition is that the impugned order dated 13.09.2022 was beyond the period prescribed of limitation under the NI Act. The relevant dates as set out in the present petition are as under: - Relevant Date Particulars/Remarks 31.03.2022 Return Memo was issued by HDFC Bank in relation to the subject cheque. 25.04.2022 Statutory Legal Notice issued on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein, it has been observed and held as under: - "7. The only issue germane in present proceedings is that when did the limitation commence for filing the complaint and whether the time spent in pursuing the first complaint filed before the court in Gurugram could be excluded. **** **** **** 16. Another contention was raised on behalf of the complainant that the issue of limitation being a mixed question of law and fact should be tested in trial and in this regard, reference was made to the decision of Co-ordinate Bench in Pawan Kumar Ralli v. Maninder Singh Narula reported as (2014) 15 SCC 245. On a perusal of the said decision, it is apparent that in said case, the issue of limitation was urged for the first time before High Court whereas in the present case, the issue was urged before the trial court in as much as an application was preferred by the accused seeking discharge contending that the complaint was barred by time. The said application was rejected. A perusal of the material on record would show that the complainant has always maintained that its complaint was filed in time and offered no explanation for the delay or sought its condonation. The timelines stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed even after the stipulated time period, if the complainant is able to satisfy the concerned Court that he had sufficient cause/reasons for not presenting/filing the complaint within the said stipulated time period. 7. Reliance was placed on judgment of the Hon'ble Supreme Court in the matter of Sesh Nath Singh And Another v. Baidyabati Sheoraphuli Co-Operative Bank Limited And Another (2021) 7 SCC 313. 8. It was submitted that reasons for delay were argued before the learned Metropolitan Magistrate and the same were duly considered by him in the impugned summoning order. The said reasons for the delay as pointed out by the learned Senior Counsel for the respondent are as under:- "a. The Complainant filed a set of 138 complaints before the CMM (NI-Act), Patiala House Courts dated 28.02.2022 for the recovery of one cheque signed by the Petitioner herein and two cheques signed by the sister and mother of the Petitioner. Post the filing of the said complaints, the Respondent herein had also preferred filing recovery and summary suits before this Hon'ble Court. b. The Petitioner is the niece of the Respondent and upon seeing the litigation initiated between them, the family m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka at Bengaluru in Sri. S. Nagesh v. Smt. Shobha S. Aradhya 2024:KHC:24217, wherein, it has been observed and held as under: - "17. The question that would really arise is - 'whether the satisfaction of the Court regarding the delay is to be made before cognizance is taken or if the learned Magistrate could hold that the cognizance already taken on a belated complaint could be condoned, if the learned Magistrate is satisfied that the complainant had sufficient cause for presenting the complaint belatedly'. 18. It is to be borne in mind that 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. What would be of consequence is whether the Magistrate has condoned the delay in presenting the complaint. If cognizance is taken of an offence even when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable defect, and by condoning the delay, this irregularity stood cured. 25. 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. The learned Magistrate subsequently, after considering the sworn statement, actually noticed that there was a delay of 2 days and he also made a clear observation that his predecessor had taken cognizance without noticing the delay. He, in fact, reserved liberty to the accused to raise the question of delay during trial. 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. 26. In my view, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoning there is no discussion of delay. 16. Section 142 of the NI Act which provides for the period of limitation and condonation thereof reads as under:- "142. Cognizance of offences. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the 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; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction, - (a) if the cheque is delivered for collection through an account, the bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. 22. In view of the settled principles of law in Rakesh Kumar Jain [Rakesh Kumar Jain v. State, (2000) 7 SCC 656 : 2001 SCC (Cri) 208], MSR Leathers [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424 : (2013) 2 SCC (Cri) 458] and Subodh S. Salaskar [Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689 : (2009) 3 SCC (Cri) 834] and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the trial court for deciding the issue of limitation. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Pawan Kumar Ralli (supra) had emphasised that the remedy provided for condonation of delay is available to "genuine litigant" to pursue his case under Section 138 of the NI Act to overcome the technicalities of period of limitation. In Glazebrooke (supra), relied upon by the learned counsel for the petitioner, the issue of delay was disputed by the complainant therein, which is not the case in the present proceedings. 22. In the considered opinion of this Court, if there is a remedy provided for in law for condonation of delay and if sufficient reasons are shown to condone the same, then the complainant, in such cases, ought to be given a chance to justify such delay. The Hon'ble Supreme Court in Sesh Nath Singh (supra) has also stated that a formal application may not be necessary for condonation of delay, if the learned Metropolitan Magistrate while taking cognizance applies his mind to the said issue and condones the delay. In the present proceedings, the same was not done by the learned Metropolitan Magistrate despite the fact of delay being disclosed by the petitioner/accused. In these circumstances, the impugned order of summoning cannot be sustained and the procee ..... 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