B.Dey, Director M/S. Sundstrand ... vs M/S Jayson International
2011 Latest Caselaw 1602 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment delivered on: March 21, 2011

+      CRL.M.C. NO. 309/2010

       B.DEY, DIRECTOR
       M/S. SUNDSTRAND FORMS PVT. LTD. & ANR.
                                              ....PETITIONERS
                Through: Mr. O.P.Khadaria, Advocate.

                            Versus

       M/S. JAYSON INTERNATIONAL                       .....RESPONDENT

Through: Mr.M.K.Verma, Advocate.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This is a petition under Section 482 CrPC seeking quashing of

the impugned order dated 12th October, 2009 passed by the learned

M.M., Delhi, condoning the delay in filing of the complaint under

Section 138 N.I.Act and the consequent order dated 09th November,

2009 issuing process against the petitioner for appearance and

undergoing trial under Section 138 N.I.Act.

2. Briefly stated, facts relevant for this petition are that the

respondent M/s. Jayson International, a partnership firm filed a

complaint under Section 138 N.I.Act against the petitioners alleging

that petitioners had issued a cheque bearing No. 873026 for `

1,79,223/- dated 22nd September, 2008 against the discharge of the

existing liability. The cheque when presented for collection was

dishonoured and it was returned with a memo of the bank with the

remarks "Fund Insufficient". Respondent firm issued a notice of

demand under Section 138, N.I.Act to the petitioner and the

petitioner, despite of service of notice, failed to pay the demanded

cheque amount within the requisite period of 15 days from the date

of service. This led to the filing of the complaint.

3. The complaint, however was filed much later on 30th April,

2009, after the expiry of one month from the date of failure of the

petitioner to pay the cheque amount within the requisite period.

The complaint was accompanied by an application for condonation

of delay wherein respondent explained the cause for delay in filing

of the complaint in Para 3 which is reproduced thus:

"That the acting partner & authorize representative of the complainant firm has fallen ill since 01.03.2008 & suffering from Spine Lumber Syndrome, and due to the aforesaid illness the applicant was bedridden and unable to make move. The applicant has been able to move from the bed only on 28.04.2009. On 29.04.2009 the sister of the mother of complainant i.e. Maasi, has expired and he was busy in the funeral of aforesaid death. The medical certificate of the applicant is annexed herewith".

4. Learned M.M. issued notice of application of condonation of

delay to the petitioners for hearing dated 12 th October, 2009. The

petitioners however failed to put in appearance till 12.15 p.m. on

12th October, 2009 despite of the fact that the case was called

thrice. The learned M.M. therefore proceeded ex parte and

condoned the delay in filing the complaint by inter alia observing

thus:

"In view of the facts and circumstances, I am of the considered view that accused has nothing to say on the application for condonation of delay. Hence, arguments on the said application heard. File perused.

Keeping in view the facts and circumstances and the reasons as mentioned in the application, the delay in filing the present complaint is hereby condoned and the said application is allowed".

5. Learned counsel for the petitioners has submitted that the

impugned order of learned M.M. dated 12th October, 2009 is bad in

law for the reason that it is a non-speaking order and it is passed

without considering if the delay has been sufficiently explained. It is

submitted that petitioner sent a response dated 12th January, 2009

to the demand notice claiming that the goods supplied by the

respondent were of sub-standard and requested the respondent to

take back his goods. Learned counsel argued that the demand

notice was served on the petitioner on 05th January, 2009, otherwise

also, reply to demand notice sent to the respondent is dated

12.01.2009 from which, it is obvious that in any case the notice of

demand was received by the petitioners latest by 12th January, 2009.

Even if the aforesaid date is taken as date of receipt of demand

notice by the petitioner, the petitioner was supposed to make

payment of the demanded amount by 27 th January, 2009 and in

view of the alleged failure of the petitioner to comply with the

demand notice, the respondent was required to file the complaint

under Section 138 N.I.Act within a period of one month i.e. latest by

27th February, 2009. Learned counsel argued that on perusal of the

application for condonation of delay, it would be seen that in the

application, explanation for delay with effect from 01st March, 2009

onwards is given, but there is no explanation as to why the

complaint was not filed on 27th February, 2009 or 28th February,

2009. Thus, it is urged that the impugned order of learned M.M.

dated 12th October, 2009 is untenable and the petition under Section

138 N.I.Act is hopelessly time-barred in view of the proviso to Sub-

Clause (b) to Section 142 of N.I.Act.

6. Learned counsel for the respondent, on the other hand,

submits that the delay has been properly explained by the

respondent and merely because one day's delay is not explained,

the complaint under Section 138 N.I.Act cannot be dismissed as time

barred.

7. I have considered the rival submissions. Without going into

the merits of application for condonation of delay, on perusal of the

impugned order condoning the delay, it transpires that the learned

M.M. has passed a non-speaking order without referring to the facts

and circumstances of the case. On this count alone, the impugned

order is bound to be set aside.

8. In view of the above, the impugned order dated 12th October,

2009 as well as the consequent order of summoning dated 09 th

November, 2009 in CC No. 366/1/2009 are hereby set aside and the

matter is remanded back to the learned M.M. to decide the

application for condonation of delay after hearing the parties on

merit of explanation given in the application for condonation of

delay.

9. Parties are directed to appear before the learned Trial Judge on

26th March, 2011, who shall fix a date and dispose of the application

for condonation of delay in accordance with law.

10. Petition stands disposed of.

(AJIT BHARIHOKE) JUDGE MARCH 21, 2011 akb