* HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. No. 1019/2012
Date of Decision : 05.09.2012
RAM KISHOR ......Petitioner
Through: Mr. Lal Singh Thakur, Mr. Vikas
Vats & Mr. Bharat Bhushan,
Advocates.
versus
GEETA DEVI & ANR ..... Respondents
Through: Mr. Amarveer Singh Bhullar, Mr.
Arvind Kr. Chauhan & Mr. Pawan
Kr. Pandey, Advocates.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a petition filed under Section 482 Cr.P.C. against the impugned order dated 14.2.2012 passed in complaint case no.2262/10 by the learned Metropolitan Magistrate, Rohini, Delhi. By virtue of the said impugned order, the learned Magistrate has rejected the application of the petitioner seeking condonation of delay of 12 days in filing the complaint under Section 138 of the Negotiable Instruments Act.
Crl.M.C.1019/2012 Page 1 of 7
2. Briefly stated the facts of the case are that the petitioner filed a complaint u/S 138 of the Negotiable Instruments Act against the respondent for dishonour of the cheque for an amount of `69,000/- or so. This complaint was filed with a delay of 12 days along with an application seeking condonation of the said delay.
3. The ground which was pleaded by the petitioner was that after sending the demand notice to the respondent on 7.7.2008, the respondent had assured the petitioner that he would settle the matter and therefore, he did not proceed ahead with the filing of the complaint. The learned Magistrate after referring to the statutory provision and the case law had observed rightly, that while condoning the delay, the length of the delay is not relevant. What is relevant is satisfactory explanation. It has been observed that if the delay has been caused on account of dilatory tactics, deliberate inaction or negligence on the part of the complainant, such a delay cannot be condoned.
Crl.M.C.1019/2012 Page 2 of 7
4. The learned Magistrate has observed that the petitioner had received a reply to the demand notice dated 07.7.2008, wherein the respondent had not only denied any liability towards the complainant but had also stated that the entire sale consideration had already been paid to the complainant. It was stated in the reply that the complainant, instead of returning the cheque in question despite the payment having been received, withheld the same and mis-utilized the cheque on presentation. There were serious allegations of breach of trust, cheating and fraud against the complainant by the respondent. In the light of these allegations, the learned Magistrate took the view that the explanation which has been furnished by the petitioner/complainant that the complaint could not be filed timely on account of the fact that the respondent had assured him of the payment did not inspire confidence and disbelieved the version of the petitioner for seeking condonation of delay. Hence, it rejected the application.
Crl.M.C.1019/2012 Page 3 of 7
5. The petitioner feeling aggrieved has preferred the present petition assailing the order passed by the learned Magistrate. The learned counsel for the petitioner has placed reliance on the case titled M/s Brushman India Ltd. & Anr. Vs. Standard Chartered Bank II (2012) BC 536, wherein the learned Magistrate had condoned the delay of 45 days in filing the compliant and the said order was assailed before the High Court. The High Court dismissed the petition holding that there is no infirmity or illegality in the order of the learned Magistrate condoning the delay. The High Court had referred not only to the statutory provision but also to the various judgments of the Apex Court where the words 'sufficient cause' has been explained. In one such judgment titled N.Balakrishnan Vs. M.Krishnamurthy, JT 1998 (6) SC 242, the Supreme Court had observed that the condonation of delay is a matter of discretion of the Court for which the acceptability of the explanation is the only criterion. The quantum of delay being long or short is not important, what is important is the explanation furnished by the petitioner/complainant in a Crl.M.C.1019/2012 Page 4 of 7 given case. It was also observed that in case the discretion has been exercised in a positive manner by the Court below, the superior Court should not disturb such a finding much less, in a revisional jurisdiction, unless and until the exercise of discretion was on the whole untenable or arbitrary or perverse.
6. I feel that this ratio of the exercise of discretion by the Court will be equally applicable in a case where the discretion has not been exercised in favour of a party by the Court below. Meaning thereby, if the Court below has not found the explanation which has been furnished, as has been done in the instant case, to be good enough to inspire confidence then the Revisional Court or the High Court in exercise of its power u/S 482 Cr.P.C. being a superior Court should not substitute its view in place of the view taken by the Court below.
7. The learned counsel for the petitioner has literally wanted this Court to substitute its view in place of the view taken by the Court below, which I feel will not be proper. The reason for non-exercise of discretion in favour of the Crl.M.C.1019/2012 Page 5 of 7 petitioner does not suffer from any perversity, irregularity or incorrectness.
8. The quantum of delay as has been observed is not important, what is important is the explanation. The petitioner/complainant has not been straight forward in giving the correct reasons for the delay in filing the complaint.
9. It is not in dispute as has been observed by the learned Magistrate that the demand notice was met with a reply of the respondent where not only the liability of the respondent was denied but also the allegations were made that the entire amount stands paid and the cheque which continued to be with the petitioner/complainant by way of a security was mis-utilized and allegations of breach of trust, fraud, etc. were levelled against him.
10. If this is the stand taken by the respondent then in such a case, it is unthinkable that the respondent would persuade the petitioner to settle the matter and would like him to hold back his hands by not filing the complaint. Assuming for a moment, it was done, even then the petitioner/complainant ought not to have Crl.M.C.1019/2012 Page 6 of 7 believed the same. He should have gone ahead with the filing of the complaint.
11. Keeping in view the nature of reply sent by the respondent, I feel that the judgment which is sought to be relied upon by the petitioner is not applicable to the facts of the present case as the factual matrix of the two cases is different; one where the delay has been condoned by the trial court and the decision is challenged before the High Court and the instant case, where the delay having not been condoned and yet the decision is being challenged. There is no dispute about the proposition of law laid down either by the Apex Court or by the High Court in the aforementioned judgments.
12. I feel that there is no illegality, perversity or abuse of the processes of law which warrants the exercise of jurisdiction by this Court u/S 482 Cr.P.C. so as to set aside the order passed by the learned Magistrate and accordingly, the petition is dismissed.
V.K. SHALI, J.
SEPTEMBER 05, 2012 RN Crl.M.C.1019/2012 Page 7 of 7