Ram Kishor vs Geeta Devi & Anr
2012 Latest Caselaw 5302 Del

*            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.

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.

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.

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

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

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

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