Delhi High Court
Fincap Portfolio Ltd. vs State & Ors on 1 February, 2013
Author: G.P. Mittal
19, 20, 21, 22, 23, 24 & 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st February, 2013
+ CRL.L.P. 484/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 485/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 486/2011
Crl.L.P. Nos.484/2011, 485/2011,486/2011, 487/2011, 488/2011, 489/2011 & 490/2011 Page 1 of 11
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 487/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 488/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Crl.L.P. Nos.484/2011, 485/2011,486/2011, 487/2011, 488/2011, 489/2011 & 490/2011 Page 2 of 11
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 489/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
+ CRL.L.P. 490/2011
FINCAP PORTFOLIO LTD. ..... Petitioner
Through: Mr. K.K. Manan with Mr. Nipun
Bhardwaj, Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Rajdipa Behura, APP for the
State/Respondent No.1.
Mr. Vijay Aggarwal with Mr. Gurpreet
Singh, Advocates for the Respondents
No.2 to 4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
Crl.L.P. Nos.484/2011, 485/2011,486/2011, 487/2011, 488/2011, 489/2011 & 490/2011 Page 3 of 11
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These seven Leave Petitions (Crl.L.Ps. 484/2011, 485/2011, 486/2011,
487/2011, 488/2011, 489/2011 & 490/2011) arise out of a similar order
passed in seven Complaint Cases under Section 138 of the Negotiable
Instruments Act, 1881 ('the Act') whereby the seven complaints were
dismissed on account of the non-appearance on behalf of the Complainant
and the accused, that is, Respondents No.2 to 4 were acquitted.
2. The order dated 14.07.2010 passed by the learned Metropolitan
Magistrate, Patiala House, New Delhi is extracted hereunder:-
"14.07.10.
At 2 p.m.
Pr. None for Complaint
Counsel for accused
Case today is listed for disposal of the Application of
Complainant for furnishing additional affidavit. There is no
appearance on behalf of Complainant since morning despite
repeated calls. Even on 12.11.09 there was no appearance on
behalf of Complainant.
Case is dismissed in default as well as for non-
prosecution. Accused is acquitted. File be consigned to Record
Room."
3. Along with the Leave Petitions, an Application under Section 5 of the
Limitation Act, 1963 has been moved for condonation of delay of 404
days in filing these Leave Petitions. The grounds set up in the
Applications are that the junior counsel appearing for the main counsel
did not inform him (the main counsel) about the dismissal of the
Complaint for non-appearance. Thus, the delay in filing the Appeal
(Leave Petitions) is not intentional but on account of the reasons beyond
the powers of the Petitioner.
4. The Application is opposed by Respondents No.2 to 4 by way of filing a
written reply. It is stated that in fact there is a delay of 461 days in filing
the Appeal (Leave Petition). The Respondents have acquired indefeasible
right. It is stated that certified copy of the order was obtained on
25.03.2011 and even thereafter the Leave Petition was filed only on
21.10.2011, that is, after a gap of another 209 days. Even if, the case was
dismissed in default on account of the wrong noting of the date, or, even
if, the junior counsel could not inform the main counsel of the dismissal
in default of the Complaint Case. The Petitioner has not given any
explanation for this delay of 209 days.
5. Mr.K.K.Manan, learned counsel for the Petitioner urges that the Courts
normally do not throw away meritorious lis on hypertechnical grounds.
The primary function of a Court is to adjudicate the dispute between the
parties and to advance substantial justice. The time-limit fixed for
approaching the Court in different situations is not because on the expiry
of such time a bad cause would transform into a good cause. Rules of
limitation are not meant to destroy the rights of parties. They are meant
to see that parties do not resort to dilatory tactics, but seek their remedy
promptly. The object of providing a legal remedy is to repair the damage
caused by reason of legal injury.
6. Learned counsel contents that a criminal offence is considered as a wrong
against the State and also the society and, therefore, the Court should be
very liberal in condoning the delay in launching prosecution or, even if,
in filing the Appeal. Learned counsel places reliance on a three Judges
Bench decision of the Supreme Court in Udai Shankar Awasthi v. State of
U.P. & Anr., decided on 09.01.2013. Paras 6 to 9 of the Report of the
Supreme Court are extracted hereunder:-
"6. Section 468 Cr.P.C. places an embargo upon Court from
taking cognizance of an offence after the expiry of the limitation
period provided therein. Section 469 prescribes when the
period of limitation begins. Section 473 enables the Court to
condone the delay, provided that the Court is satisfied with the
explanation furnished by the prosecution/ complainant, and
where, in the interest of justice, extension of the period of
limitation is called for. The principle of condonation of delay is
based on the general rule of the criminal justice system which
states that a crime never dies, as has been explained by way of
the legal maxim, nullum tempus aut locus occurrit regi (lapse of
time is no bar to the Crown for the purpose of it initiating
proceedings against offenders). A criminal offence is
considered as a wrong against the State and also the society as
a whole, even though the same has been committed against an
individual.
7. The question of delay in launching a criminal
prosecution may be a circumstances to be taken into
consideration while arriving at a final decision, however, the
same may not itself be a ground for dismissing the complaint at
the threshold. Moreover, the issue of limitation must be
examined in light of the gravity of the charge in question.
(Vide: Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC
2762; Sajjan Kumar v. Central Bureau of Investigation, (2010)
9 SCC 368; and Noida Entrepreneurs Association v. Noida &
Ors., AIR 2011 SC 2112).
8. The Court, while condoning delay has to record the
reasons for its satisfaction, and the same must be manifest in
the order of the Court itself. The Court is further required to
state in its conclusion, while condoning such delay, that such
condonation is required in the interest of justice. (Vide: State of
Maharashtra v. Sharad Chandra Vinayak Dongre & Ors., AIR
1995 SC 231; and State of H.P. v. Tara Dutt & Anr., AIR 2000
SC 297).
9. To sum up, the law of limitation prescribed under the
Cr.P.C., must be observed, but in certain exceptional
circumstances, taking into consideration the gravity of the
charge, the Court may condone delay, recording reasons for
the same, in the event that it is found necessary to condone such
delay in the interest of justice."
7. Per contra, the learned counsel for Respondents No.2 to 4 argues that
party seeking condonation of delay must show sufficient cause and give
proper explanation for delay in filing an Appeal or a Petition, if the delay
is not properly explained, the Court will not come to the rescue of the
litigant who is negligent and causes harassment to the opposite party. The
learned counsel states that on expiry of period of limitation prescribed for
seeking legal remedy certain rights accrue in favour of the opposite party
which cannot be taken away without their being sufficient cause for
condonation of delay. The learned counsel for Respondents No.2 to 4
places reliance on Sudhir Kumar Anand v. Dr.Vijay Kr.Anand & Ors.,
189 (2012) DLT 774 and Hameed Joharan & Ors. v. Abdul Salam, AIR
2001 SC 3404.
8. Section 256 of the Code of Criminal Procedure, 1973 ('the Code')
empowers a Magistrate to stop proceedings or dismiss a complaint for
non-appearance of the Complainant and pronounce a judgment of
acquittal where evidence of principle witnesses has been recorded.
Section 256 of the Code is extracted hereunder:-
"256. Non-appearance or death of complainant:- (1) If the
summons has been issued on complaint, and on the day
appointed for the appearance of the accused, or any day
subsequent thereto to which the hearing may be adjourned, the
complainant does not appear, the Magistrate shall,
notwithstanding anything hereinbefore contained, acquit the
accused, unless for some reason he thinks it proper to adjourn
the hearing of the case to some other day:
Provided that where the complainant is represented by a
pleader or by the officer conducting the prosecution or where
the Magistrate is of opinion that the personal attendance of the
complainant is not necessary, the Magistrate may dispense with
his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be,
apply also to cases where the non-appearance of the
complainant is due to his death."
9. In Associated Cement Company Limited v. Keshvanand (1998) 1 SCC
687 the Supreme Court observed that the provisions of Section 247 of the
Code of Criminal Procedure, 1898 (Section 256 in the New Code) have
been incorporated to provide some deterrence against dilatory tactics on
the part of a Complainant who sets the law in motion through his
complaint. An accused who per force has to attend the Court on all
posting days can be put to much harassment by the Complainant by his
absence.
10. The order dated 14.07.2010 reveals that there was no appearance on
behalf of the Petitioner for the whole day. Learned Magistrate noted that
even on 12.11.2009 none had appeared on behalf of the Complainant. The
object of incorporation of Section 256 of the Code as stated earlier is that
the Complainant after filing a complaint must not take process of the
Court lightly and must not cause unnecessary harassment to a person who
has been summoned to face trial as an accused. I will not dwell much on
merits since at the moment I am only looking into the aspect whether
there is sufficient cause for condonation of delay in filing the Leave
Petition. It is true as held in Udai Shankar Awasthi (supra) that a criminal
offence is a wrong against the State but at the same time the Supreme
Court observed that the Court while condoning the delay has to record the
reasons for its satisfaction. The instant case relates to dishonour of the
cheque which was made a criminal offence by incorporation of Section
138 in the Act w.e.f. 01.04.1989. Although, the conviction under Section
138 of the Act entails substantive imprisonment which may extent to one
year or with fine or with both, yet the nature of the offence is such that it
can be mentioned as quasi criminal proceedings. The dishonour of the
cheque is not an offence against the society but an offence against an
individual. Therefore, it is all the more necessary that adequate
explanation must be given. It is true that the expression 'sufficient cause'
should be given a liberal interpretation so as to advance substantial justice
between the parties. [Balwant Singh v. Jagdish Singh, (2010) 8 SCC
685]. It is not the length of delay which is material for condonation of
delay in filing an Appeal but the acceptability of the explanation. There
may be cases where a few months' delay may not be condoned as an
Applicant has no reasonable explanation to offer for the same, yet there
are cases where the delay of several years has been condoned. [State of
Nagaland v. Lipok Ao & Ors., (2005) 3 SCC 752]. The law that each day
must be explained has mellowed down yet it has to be shown by the
Applicant that there was neither any gross negligence, nor any inaction,
nor want of bona fides.
11. Turning to the facts of the instant case, the Petitioner's plea is that there
was wrong noting of the date as it was noted as 15.07.2010 instead of
14.07.2010. Even if, there was wrong noting of the date by the learned
counsel, there is not even a whisper as to why the Complainant himself
could not appear before the Court on 15.07.2010. Furthermore, the fact
that this Leave Petition along with an Application for condonation of
delay was filed in this Court only on 21.10.2011, that is, after about one
year and four months of the alleged date of hearing, that is, 15.07.2010
which shows that the Complainant was totally unconcerned about the date
of hearing or for his appearance on the date of hearing. Thus, even if, the
Complainant also noted the date wrongly as 15.07.2010 instead of
14.07.2010 he would have asked his counsel to take immediate steps for
setting aside of the order dated 14.07.2010. There is not even a whisper as
to when the Complainant contacted the counsel. This is very material in
view of the fact that the Complainant was expected to appear in the case
on each and every date of hearing.
12. Further, as urged by the learned counsel for Respondents No.2 to 4
although certified copy of the order was prepared on 25.03.2011, yet this
Leave Petition for setting aside of the order of dismissal in default of the
complaint was instituted only on 21.10.2011. A plea is taken that there
was delay on account of not passing the information of dismissal in
default by the junior counsel to the main counsel. No explanation
whatsoever has been given as to why steps were not taken by the main
counsel even when certified copy was available on 25.03.2011.
13. A Co-ordinate Bench of this Court in National Small Industries
Corporation Ltd. v. M/s Akriti Industries & Ors., 2012 (3) JCC (NI) 217,
in the absence of sufficient cause declined to condone a delay of 28 days
in filing leave to Appeal against dismissal of a complaint under Section
138 of the Act.
14. The Petitioner has failed to show sufficient cause for condonation of
delay. Rather, it is apparent that there was gross negligence on the part of
the Petitioner in perusing the complaint and filing leave to appeal.
15. In the circumstances, the delay of more than 400 days in filing leave to
Appeal cannot be condoned. Leave Petitions are accordingly
dismissed.
16. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 01, 2013
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