The Tripura High Court has reitrerated that under Section 138 of the NI Act, if original complaint is filed after expiry of statutory period, then before condoning the delay, the accused shall be heard as per proviso to Section 142 (b) of the NI Act.
The observations were made by single judge bench of Justice Arindam Lodh in the appeal filed under Section 138 of the NI Act.
Brief Facts of the Case:
In the case of Sri Sumit Deb v. Sri Joy Deb and Others the appellant is a contractor who supplied stone chips worth 5 lakhs to the accused on credit terms with a hope of repayment of the same. Subsequently the accused issued a cheque amounting to 5 lakhs to the appellant which was bounced and become dishonoured. After which the appellant issued a demand notice to the accused to pay the said amount within the period of 15 days but the accused failed to comply with directions of the said notice resulting in filing of a complaint by the appellant before the trial court.
The ld. Trial court dismissed the complaint and acquitted the the accused on the basis that there was delay of 10 days in filing of the complaint, and that the delay was condoned without giving an opportunity to the accused.
Aggrieved by the same the appellant filed an appeal against the the judgment of trial court.
Counsel’s Submissions:
Ld. Counsel for appellant contended that the trial court dismissed their complaint on the factor that there was 10 day delay in filing of the complaint according to the law and that the matter was taken further without condoning the delay .
He further submits that the proviso to Section 142 (b) of the NI Act would not suggest that there should be a separate petition for condoning the delay. He focussed on the point that since the court proceeded with the trial, the matter of condonation of delay would be deemed to be condoned.
He made reliance upon the judgments in case of Subodh S. Salaskar Vs. Jayprakash M. Shah & ANR., 2008 Latest Caselaw 651 SC and Sankar Choudhury Vs. State of Tripura and Another. Ld. Counsel for respondent submitted that the complaint made under Section 138 of the NI Act was filed beyond the prescribed period of limitation.
High Court's Observation:
High court of Tripura in the concerned appeal made apposition to the Section 142(b) of NI act with the relevant proviso which says that “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.]”
Under the view of relevant proviso High court observed that if a complaint is filed beyond the statutory period as specified in section 138 of NI act, then the complainant must satisfy the court that he had sufficient cause for not making the complaint within the specified period or that the delay was due to valid reasons.
The court enlightened the issue in question that “whether before passing the condonation of delay, respondents had the right to be heard or not.”
To which court stated that the same is no re-integra and issues of such like has already been mandated in case of Sankar Choudhury (supra), where it was held that before condoning the delay, accused must be provided a notice along with the application for the same ,and that the ld. Magistrate must decide whether the matter can be condoned or not after being satisfied that cause of action was valid.
High Court reiterated the supra cases and said that the trial court wrongfully took cognizance and proceeded further with the trial which caused serious prejudice to both the parties and directed to remit the matter to the ld. Trial court.
The impugned judgement was set aside and quashed and the appeal was disposed and allowed.
CASE TITLE: Sri Sumit Deb v. Sri Joy Deb and Others
CASE DETAILS: CRL. A. NO.09 OF 2020
CORAM: Justice Arindam Lodh
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