Dinesh vs Apsom Infotex Ltd.

Ajit Bharihoke, J.—This is a petition u/s 482 Code of Criminal Procedure seeking setting aside of the order of learned M.M. dated 23rd April, 2008 whereby he condoned the delay in filing of the complaint and also issued summons against the Petitioner to undergo trial.

Briefly stated, facts relevant for disposal of this petition are that the Respondent filed a complaint u/s 138 N.I. Act against the Petitioner on the allegation that the Petitioner have purchased some machinery from the Respondent and issued three cheques, each worth Rs. 1 lakh for payment of the price of machinery. The cheques, when presented for collection were dishonored. Respondent, therefore served the Petitioner with a demand notice u/s 138 N.I. Act and despite of service of notice, the Petitioner failed to make the payment of cheques amount.

Undisputedly, the complaint was filed after the expiry of period of limitation. Learned M.M. vide order dated 23rd April, 2008 has condoned the delay in filing of the complaint with following observations:

Perusal of record shows that the legal notice was sent on 25.02.2008 and no receiving regarding service return back. It is settled law that it would be presumed that the legal notice would be served maximum within one week from the date of posting. Therefore, it is presumed that the legal notice would have been served on 03.03.2008. Thereafter, 15 days time for the accused to make the payment which expires on 18.03.2008 and the complainant has to file the complaint within one month and the date expires on 19.04.2008 and the present complaint was filed on 22.04.2008. Therefore, there is delay of 3 days for filing the present complaint. Considering the submissions made by the Ld. Counsel for complainant, I find it sufficient ground to condone the delay, therefore, in the interests of Justice the delay of 3 days in filing the complaint is condoned

The main grievance of the learned Counsel for the Petitioner is that the learned M.M. has allowed the application for condonation of delay without serving the notice on the Petitioner and affording him an opportunity of being heard. This amounts to violation of principle of natural justice and as such, the impugned order dated 23rd April, 2008 of learned M.M., whereby the delay in filing the complaint was condoned and the Petitioner was summoned to undergo trial u/s 138 N.I. Act, is liable to be set aside.

On the contrary, learned Counsel for the Respondent, submits that Proviso to Section 142(b) confers the power on the court to take cognizance of a complaint filed after the period of limitation if the complainant is able to satisfy the court that there was a sufficient cause which prevented him from filing the complaint within the period of limitation. Learned Counsel contended that perusal of the impugned order would show that learned M.M. has condoned the delay in filing the complaint beyond the period of limitation after due consideration on the application for condonation of delay. Thus, it is contended that there is no reason for setting aside the impugned order.

I have considered the rival contentions and perused the material on record. Admittedly, the complaint u/s 138, Negotiable Instruments Act was filed against the Petitioner after the expiry of the period of limitation. Section 142 of Negotiable Instruments Act provides a bar on a criminal court to take cognizance of offence u/s 138 N.I. Act after the expiry of one month from the date on which the cause of action arose. Only exception to this bar is the Proviso to Section 142(b) of the Act. Thus, it is apparent that the moment the period of limitation for filing the complaint u/s 138, N.I. Act expired, a valuable right had accrued in favour of the Petitioner i.e. he could not be prosecuted for offence u/s 138 N.I. Act. Condonation of delay in filing of the complaint after the expiry of the period of limitation by learned M.M. has an effect of doing away with the right, which has accrued to the Petitioner. Therefore, the principle of natural justice demanded that the learned M.M., while dealing with the application for condonation of delay in filing the complaint, ought to have given an opportunity of being heard to the Petitioner by serving him with a notice. This, however, has not been done in this case. From the record, it transpires that the complaint along with the application for condonation of delay was assigned to learned M.M. on 23rd April, 2008 and on the same day, learned M.M., without caring to serve the Petitioner with a notice of application for condonation of delay, proceeded to allow the application ex parte. This has deprived the Petitioner of his valuable right of being heard and make his submission against the plea for condoning the delay and resulted in illegality.

In view of the above, I am unable to sustain the impugned order of learned M.M., condoning the delay in filing of the complaint as well as consequent order of summoning the Petitioner u/s 138 N.I. Act to undergo trial. Accordingly, the impugned order dated 23rd April, 2008 is set aside and the matter is remanded back to the learned M.M. with the direction that he shall decide the application for condonation of delay on merits after hearing the parties.

Petition stands disposed of.

Copy of the order be sent to learned M.M. for information and compliance.