Kartik Harshad Jhaveri vs Charanjit Arora And Anr
2025 Latest Caselaw 8963 Bom

Bombay High Court

Kartik Harshad Jhaveri vs Charanjit Arora And Anr on 16 December, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

2025:BHC-AS:55472
                                                                 -WP-5646-2025-.DOC

                                                                      Arun Sankpal



                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION
                                WRIT PETITION NO. 5735 OF 2025


               Kartik Harshad Jhaveri,                              ..Petitioner
               Age: 47 Years
               Proprietor,
               Care Comp Computer Solutions
               2/41, Samrat Ashok Coop Hsg Society,
               7th R.T Marg, Malbar Hill,
               Mumbai 400 006.

                     Versus

               1. Charanjit Arora,
               Proprietor of Esource Global
               D-312, Crystal Plaza, Andheri Link Road,
               Andheri (West), Mumbai 400 049.

               2. The State of Maharashtra
               Through Office of Government Pleader
               Appellate Side, High Court,
                                                                 ...Respondents
               PWD Building, High Court, Mumbai

                               WRIT PETITION NO. 5646 OF 2025

               Kartik Harshad Jhaveri,                              ..Petitioner
               Age: 47 Years
               Proprietor,
               Care Comp Computer Solutions
               2/41, Samrat Ashok Coop Hsg Society,
               7th R.T Marg, Malbar Hill,
               Mumbai 400 006.

                     Versus

               1. Charanjit Arora,
               Proprietor of Esource Global
               D-312, Crystal Plaza, Andheri Link Road,
                                                1/19
                                                         -WP-5646-2025-.DOC

Andheri (West), Mumbai 400 049.

2. The State of Maharashtra
Through Office of Government Pleader
Appellate Side, High Court,                            ...Respondents
PWD Building, High Court, Mumbai

                 WRIT PETITION NO. 5644 OF 2025

Kartik Harshad Jhaveri,                                    ..Petitioner
Age: 47 Years
Proprietor,
Care Comp Computer Solutions
2/41, Samrat Ashok Coop Hsg Society,
7th R.T Marg, Malbar Hill,
Mumbai 400 006.

      Versus

1. Charanjit Arora,
Proprietor of Esource Global
D-312, Crystal Plaza, Andheri Link Road,
Andheri (West), Mumbai 400 049.

2. The State of Maharashtra
Through Office of Government Pleader
Appellate Side, High Court,
                                                       ...Respondents
PWD Building, High Court, Mumbai


Mr. Ashok Shetty, with Karishma Jhaveri, i/b Navdeep Vora &
      Associates, for the Petitioner in all Petitions.
Mr. Bhagwan Mishra, for Respondent No.1 in all Petitions.
Smt. R.S. Tendulkar, APP, for the Respondent No.2-State in all
      Petitions.

                            CORAM:         N. J. JAMADAR, J.
                     RESERVED ON :         11th NOVEMBER 2025
                PRONOUNCED ON :            16th DECEMBER 2025




                                  2/19
                                                          -WP-5646-2025-.DOC

JUDGMENT:

1. Rule. Rule made returnable forthwith and, with the consent of

the learned Counsel for the parties, heard finally.

2. These Petitions under Article 227 of the Constitution of India and

Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, assail the

legality, propriety and correctness of the judgment and order dated 12 th

August 2025 passed by the learned Additional Sessions Judge in

Criminal Revision Application Nos. 102, 103 and 104 of 2024, whereby

the Revision Applications preferred by the Petitioner-Accused in the

complaints for an offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 ("the N.I. Act, 1881), against an order

dated 8th February 2024 passed by the learned Magistrate thereby

dismissing the Applications for dismissal of the complaints on the

ground of bar of limitation, came to be dismissed.

3. The background facts leading to these Petitions can be stated, in

brief, as under:

2.1 The Respondent No.1-complainant lodged three complaints for

the offence punishable under Section 138 of the N.I. Act, 1881 on 10 th

July 2007, initially, in the Court of Judicial Magistrate, First Class, at

Ulhasnagar.

2.2 By an order dated 5th July 2010, the learned JMFC, Ulhasnagar

was persuaded to dismiss the complainants for want of jurisdiction.

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2.3 Being aggrieved, the complainant preferred Criminal Writ Petition

Nos. 3097, 3098 of 3099 of 2010 before this Court. By an order dated

18th October 2011, this Court while affirming the view of the learned

Magistrate, Ulhasnagar, that the said Court had no jurisdiction to

entertain, try and decide the complaints, modified the said order to the

effect that the complaints be restored to the file of the learned JMFC,

Ulhasnagar, and thereupon the learned JMFC shall pass a formal order

returning the complaints to the complainant for presentation to the

proper Court with an endorsement made thereon to that effect.

2.3 It appears that since the complainant did not turn up to take back

the complainants for presentation to the proper Court, by a notice dated

2nd December 2011, the learned Magistrate called upon the

complainants to take back those complaints.

2.4 The complainant took back the complainants and lodged the

complaints in the Court of Metropolitan Magistrate, Andheri on 9 th

February 2012 along with the Applications for condonation of delay in

filing those complaints. The said Applications for condonation of delay

were resisted by the accused. The complainant led evidence therein. It

seems the evidence was closed on 21st February 2014.

2.5 On 7th February 2019, the complainant sought leave to withdraw

the Applications for condonation of delay asserting that there was no

delay in filing the complaints. Thereupon, the learned Magistrate

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allowed the complainant to withdraw the Applications for condonation

of delay.

2.6 The accused preferred Application for dismissal of the complaints

contending that the complaints were barred by limitation. The

complainant contested the said Applications. By an order dated 8 th

February 2024, the learned Magistrate rejected the Applications opining

inter alia that in view of the provisions contained in Section 14 (2) of

the Limitation Act, 1963, the time during which the complainant had

been prosecuting with due diligence other proceedings was required to

be excluded.

2.7 The learned Magistrate was also of the view that in the

intervening period, the learned Magistrate had taken cognizance and

issued process against the accused for an offence punishable under

Section 138 of the N.I. Act, 1881. Thus, at that stage, the complaints

cannot be dismissed on the ground of bar of limitation.

2.8 Being aggrieved, the accused preferred Criminal Revisions before

the learned Sessions Judge.

2.9 By the impugned judgment and order, the learned Additional

Sessions Judge rejected the Revision Applications opining that the

accused had not challenged the order of issue of process and, therefore,

the said order attained finality, and whether or not the complaints were

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barred by limitation was to be decided at the trial after giving an

opportunity to the parties to adduce evidence.

2.10 Being further aggrieved the accused has preferred these Petitions.

4. I have heard Mr. Ashok Shetty, the learned Counsel for the

Petitioner, Mr. Bhagwan Mishra, the learned Counsel for the Respondent

No.1 and Smt. R. S. Tendulkar, the learned APP for the Respondent-

State, in all the Petitions.

5. Mr. Shetty, the learned Counsel for the Petitioner, submitted that,

the learned Additional Sessions Judge as well as the learned Magistrate

approached the issue of bar of limitation raised by the Petitioner from

an erroneous perspective. Once it was demonstrated that the complaints

were lodged before the jurisdictional Court, clearly beyond the period of

limitation, the learned Magistrate could not have taken cognizance of

the offence. Therefore, the view of the Courts below that since

cognizance of the offence had already been taken, the issue of bar of

limitation could be decided at the trial only, was incorrect.

6. Mr. Shetty would urge that what accentuates the situation in the

case at hand is the fact that the complainant had filed Applications for

condonation of delay in filing the complaints and after the evidence was

led, chose to withdrew those Applications.

7. In the absence of an order condoning the delay in filing the

complaints, the Magistrate has no jurisdiction to proceed further and

-WP-5646-2025-.DOC

take cognizance of the offence. A very strong reliance was placed by Mr.

Shetty on an order passed by the Supreme Court in the Case of H.S.

Oberoi Buildtech Pvt Ltd and Ors Vs MSN Woodtech, 1 wherein the

Supreme Court enunciated that though the Court is empowered to

condone the delay under Section 142 of the N.I. Act, 1881, the first

requirement is that the Court has to take note of the fact that there is a

delay and, thereafter, it had to go on the point whether the reasons

which have been furnished by the complainant are sufficient to condone

such delay and only then move on to take cognizance and proceed for

issuance of summons.

8. Mr. Shetty further urged that the fact that there was delay in

lodging the complaints with the jurisdictional Court is self-evident. This

Court had ordered the learned Magistrate to pass a formal order of

return of the complaint for presentation to the proper Court on 18 th

October 2011. The complainant did not appear before the learned

Magistrate, Ulhasnagar and, therefore, the learned Magistrate had

issued notice on 2nd December 2011. Yet, the complaints were lodged in

the Court of Metropolitan Magistrate at Andheri on 9th February 2012.

9. In the backdrop of these facts, the Courts below could not have

brushed aside the bar of limitation in filing the complaints on the

spacious ground that, in the intervening period, the learned Magistrate

1 Manu/SCOR/68073/2025.

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had taken cognizance of the offence and issued process against the

accused.

10. Mr. Shetty submitted that the provisions contained in Section 142

of the N.I. Act, 1881, prescribing the time limit for filing the complaints

are substantive provision. In the event of default on the part of the

payee to lodge the complaint within the stipulated period, substantive

right accrues in favour of the drawer and unless the delay is condoned

under sub-Section (2) of Section 142 of the N.I. Act, 1881, the

Magistrate has no jurisdiction to proceed with the complaint.

11. To this end, Mr. Shetty placed a very strong reliance on the

judgment of the Supreme Court in the case of Subodh S Salaskar Vs

Jayprakash M Shah & Ors,2 wherein, the Supreme Court enunciated

that the provisions contained in Section 142 are substantive provisions

and not procedural one.

12. Per contra, Mr. Bhagwan Mishra, the learned Counsel for the

Respondent No.1 supported the impugned order. It was submitted that

the initial lodging of the complaints in the Court of JMFC at Ulhasnagar

was within the period of limitation. Therefore, the alleged delay in

taking back the complaints from the Ulhasnagar Court and filing the

same before the jurisdictional Court is of no consequence. In that view

of the matter, the complainant had justifiably withdrawn the

2 (2008) 13 SCC 689.

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Applications for condonation of delay as there was no delay, as such, in

filing the complaints.

13. At any rate, Mr. Mishra would urge, since the cognizance of the

offence has already been taken and process issued, the accused can very

well agitate the defence of bar of limitation at the trial. The learned

Magistrate and the learned Additional Sessions Judge, therefore, took a

correct view of the matter in repelling the challenge to the tenability of

the complaints on the count of bar of limitation. Since the said issue can

be determined at the trial, in exercise of extraordinary jurisdiction, this

Court may not entertain the Petitions, at this stage, submitted Mr.

Mishra.

14. To start with incontrovertible facts. Firstly, the demand notice was

served on the accused on 31st May 2007. The cause of action under

Clause (c) of the proviso to Section 138 arose on 16 th June 2007. Under

the provisions of Section 142(1)(b) of the N.I. Act, 1881, the

complainant was to be lodged within one month of the date on which

the cause of action arose. Secondly, the complaint was lodged in the

Court of Magistrate at Ulhanager on 10 th July 2007. Thirdly, by an order

dated 5th July 2010, the learned Magistrate dismissed the complaint for

want of jurisdiction. Fourthly, on 18th October 2011, in the Criminal

Writ Petition Nos. 3097, 3098 of 3099 of 2010, this Court modified the

said order of dismissal of the complaints, restored the complaints to the

-WP-5646-2025-.DOC

file of the learned Magistrate, Ulhasnagar with a direction to pass a

formal order returning the complaints to the complainant for

presentation to the proper Court. Lastly, the complainant did not take

back the complaints at least till 2nd December 2011 and, therefore,

notice was issued by the learned Magistrate to the complainant to

appear and take back the complaints. Though the exact date on which

the complainant collected the complaints from the Court of Magistrate

at Ulhasnagar is not clearly evident, yet, it is incontrovertible that on 9 th

February 2012, the complainant lodged complainants alongwith the

Applications for condonation of delay in the Court of Metropolitan

Magistrate at Andheri. There is not much controversy over the fact that

evidence was led in the said Applications and, while the said

Applications were at an advanced stage of hearing, on 7 th February

2019, the complainant withdrew the said Applications for condonation

of delay.

15. In the backdrop of the aforesaid uncontroverted facts, legality

and correctness of the impugned orders is required to be tested. The

learned Magistrate was of the view that in view of the provisions

contained in Section 14(2) of the Limitation Act, 1963, the time during

which the complainant had been prosecuting with due diligence the

other proceedings was required to be excluded. To what extent the

provisions contained in Section 14(2) of the Limitation Act come to the

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aid of the complainant, in a case of the present nature, is the moot

question.

16. First and foremost, it is necessary to note that, hardly five days of

period of limitation had remained unexhausted when the initial

complaints were lodged by the complainant in the Court of the

Magistrate at Ulhasnagar. Secondly, the time that elapsed between the

date of the order passed by this Court in Criminal Writ Petition Nos.

3097, 3098 of 3099 of 2010, i.e., 18th October 2011 and the date of

presentation of the complaints before the jurisdictional Magistrate thus

assumed significance.

17. Whether the entire period form the date of the order passed by

this Court on 18th October 2011 to the filing of the complaints before

the learned Magistrate at Andheri gets completely excluded was the

question which the learned Magistrate was required to pose unto

himself.

18. The position in law, in this regard, seems to be well settled. What

gets excluded from the computation of the period of limitation is the

date of presentation of the proceeding before the Court, which had no

jurisdiction, and the date on which such Court passes an order and

makes an endorsement on the Plaint returning it for presentation to the

proper Court. If the Plaintiff allows time to elapse from the date of such

order and endorsement on the Plaint to the actual presentation of such

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returned Plaint to the jurisdictional Court, the said intervening period is

not covered by sub-Section (2) of Section 14 of the Limitation Act,

1963.

19. In the case of Firm Jiwan Ram Ramchandra Vs Jagemath Sahu, 3

the Plaintiff had instituted the Suit in the Court which had no

jurisdiction on the last day of limitation. The said Court ordered the

Plaint to be returned to the Plaintiff on 26 th September 1991 for being

presented to the proper Court on or before 9 th October 1931. A

submission was canvassed that since the Court which had no

jurisdiction had granted time to the Plaintiff to present the Plaint before

the jurisdictional Court on or before 9th October 1931 and the Plaint

was accordingly presented on 9th October 1931, the bar of limitation

would not apply.

20. The Patna High Court upheld the view of the Courts below that in

computing the period of limitation the Plaintiff was entitled to exclude

only the period during which the Plaint was pending in the Court which

had no jurisdiction and the Plaintiff was not entitled to exclude the

period between 26th September 1931 and 9th October 1931. It was held

that where the Court has no jurisdiction to try the case, it has also no

jurisdiction to pass an order to the prejudice of one of the parties.

3 AIR 1937 Patna 495.

(i)     The Petitions stand partly allowed.

(ii)    The impugned order dated 12th August 2025 as well as the