Delhi High Court
Dinesh vs M/S Apsom Infotex Ltd. Thorugh Its ... on 29 March, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 29, 2011
+ CRL. M.C. NO. 4064/2009 & CRL.M.A. NO. 13801/2009
DINESH ....PETITIONER
Through: Mr.I.C.Mishra, Advocate.
Versus
M/S. APSOM INFOTEX LTD.
THROUGH ITS AUTHORIZED REPRESENTATIVE
SH. K.L.KAPOOR
.....RESPONDENT
Through: Mr. Noor Alam, 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 setting aside
of the order of learned M.M. dated 23 rd April, 2008 whereby he
condoned the delay in filing of the complaint and also issued
summons against the petitioner to undergo trial.
2. Briefly stated, facts relevant for disposal of this petition are
that the respondent filed a complaint under Section 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 ` 1 lakh for payment of the price of machinery.
The cheques, when presented for collection were dishonoured.
Respondent, therefore served the petitioner with a demand notice
under Section 138 N.I.Act and despite of service of notice, the
petitioner failed to make the payment of cheques amount.
3. 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"
4. 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 23 rd April,
2008 of learned M.M., whereby the delay in filing the complaint was
condoned and the petitioner was summoned to undergo trial under
Section 138 N.I.Act, is liable to be set aside.
5. 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.
6. I have considered the rival contentions and perused the
material on record. Admittedly, the complaint under Section 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 under Section 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 under Section 138, N.I.Act expired, a valuable
right had accrued in favour of the petitioner i.e. he could not be
prosecuted for offence under Section 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.
7. 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 under
Section 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.
8. Petition stands disposed of.
9. Copy of the order be sent to learned M.M. for information and
compliance.
(AJIT BHARIHOKE)
JUDGE
MARCH 29, 2011
akb
