Rohan Dyes & Intermediates Ltd ... vs State Of Gujarat
2021 Latest Caselaw 18288 Guj

     R/SCR.A/3162/2013                            JUDGMENT DATED: 10/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 3162 of 2013


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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ROHAN DYES & INTERMEDIATES LTD THRO' ROHAN RADHESHYAM
                       AGRAWAL
                        Versus
              STATE OF GUJARAT & 2 other(s)
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Appearance:
MR. DIPAK B PATEL (3744) for the Applicant(s) No. 1
MR Z.L. KHAN FOR MR LR PATHAN (2370) for the Respondent(s) No. 2,3
MR MOHD. HANIF SHAIKH (3547) for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 10/12/2021

                             ORAL JUDGMENT

1. The petitioner herein, which is a Company incorporated under the provisions of The Companies Act, 1956, has preferred the present petition, through its Managing Director & Authorized Signatory, seeking

R/SCR.A/3162/2013 JUDGMENT DATED: 10/12/2021

quashment of the order dated 24.04.2013 passed by the Court of learned Addl. Chief Metropolitan Magistrate, Court No.30, Ahmedabad in Misc. Application No.293 of 2009 as also the order dated 11.09.2013 passed by the Court of learned Addl. Sessions Judge, City Civil & Sessions Court, Ahmedabad in Criminal Revision Application No.208 of 2013 and thereby, to allow Misc. Application No.293 of 2009 by condoning the delay of nine days caused in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the N.I. Act").

2. Learned advocate Mr. D.B. Patel appearing for the petitioner submitted that both the Courts below have erred in not considering the reason behind the delay in filing the complaint under Section 138 of the N.I. Act. It was urged that the Managing Director & Authorized Signatory of the petitioner-Company had gone out of station, during which time, he also suffered from Jaundice and took necessary treatment. As a result thereof, delay of nine days had occasioned in the filing of complaint.

2.1 Learned advocate Mr. Patel further submitted that the trial Court ought not to have taken a hyper-technical view of the matter, as the petitioner had shown sufficient cause for the delay of nine days in filing the complaint. He submitted that the legal notice issued by the petitioner was received by the accused on 15.09.2009 and therefore, the complaint in question was required to be filed within 45 days from the said date. However, on account of Diwali Vacation in the subordinate Courts of the State, the complaint could not be filed within time and when the trial Courts re-opened on 26.10.2009, the Authorized Signatory of the petitioner-firm had to go out of station. It was only on 08.11.2009 that the complaint could be filed resulting into a delay of nine days.

    R/SCR.A/3162/2013                              JUDGMENT DATED: 10/12/2021




2.2    The learned advocate submitted that there was no suppression of

fact nor any intention on the part of the petitioner to misguide the trial Court concerned. The petitioner, being the Authorized Signatory, had gone out of station, which fact was not considered by the trial Court concerned. He drew attention of the Court to the additional Affidavit filed by the petitioner wherein, it is averred that during the period when he was out of station, he was suffering from Jaundice and had to take necessary treatment. He emphasized that the trial Court ought to have considered the provision of Section 142(1)(b) of the N.I. Act, which confers jurisdiction upon the trial Court to take cognizance of a complaint filed after the prescribed period, if the complainant satisfies that he has shown sufficient cause for not filing the complaint within the stipulated period. Hence, the delay ought to have been condoned.

2.3 In support of his submissions, learned advocate Mr. Patel placed reliance upon a decision of the Apex Court in the case of Pawan Kumar Ralli v. Maninder Singh Narula, (2014) 15 SCC 245, particularly, on the following observations :

"20. However, when the issue of limitation has come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the Court to take cognizance of offence even after expiry of the period of limitation [See MSR Leathers Vs. S. Palaniappan (2013) 1 SCC 177]. Only with a view to obviate the difficulties on the part of the Complainant,

R/SCR.A/3162/2013 JUDGMENT DATED: 10/12/2021

Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the Court to condone the delay [See Subodh S. Salaskar Vs. Jayprakash M. Shah (2008) 13 SCC 689]."

3. Learned advocate Mr. Z.L. Khan appearing for respondent No.2 submitted that the petitioner has not come before the Court with clean hands inasmuch as the petitioner had not produced any documents on record of the trial Court, along with the complaint under Section 138 of the N.I. Act, to show that the petitioner was undergoing treatment for Jaundice at the relevant time. Hence, the trial Court was justified in rejecting the complaint filed by the petitioner.

4. Heard learned advocates on both the sides. In the present case, the delay is of nine days and the reason narrated by the petitioner, who is the Authorized Signatory of the Company, is that he was out of station and was also suffering from Jaundice during such period. Under the provisions of N. I. Act, limitation is governed by Section 142(1)(b). While considering the complaint filed under Section 138, the trial Court ought to have considered the object and purport of Section 142(1)(b) of the N.I. Act. The personal inconvenience of the Authorized Signatory of the petitioner-Company was urged before the trial Court as the reason for not filing the complaint within the prescribed period, which ought to have considered by the trial Court considering the fact that the delay was only for a period of nine days. In my opinion, the trial Court ought to have considered the grounds narrated in the application and should not have made observations beyond the pleadings.

5. Looking to the facts and circumstances of the case, this Court is of

R/SCR.A/3162/2013 JUDGMENT DATED: 10/12/2021

the opinion that the petitioner, who is the Authorized Signatory of the Company, could not file complaint within the stipulated time, as he had to go out of station, during which period, he also suffered from Jaundice and the said factors ought to have been considered by the trial Court in light of the object of Section 142(1)(b) of the N. I. Act. and ought to have condoned the delay of nine days caused in filing the complaint. Thus, in view of the facts of the case and the principle laid down by the Apex Court in Pawan Kumar Ralli's (supra) case, this Court is of the opinion that the delay of nine days caused in filing the complaint under Section 138 of the N.I. Act deserves to be condoned.

6. For the foregoing reasons, the petition is allowed. Both the impugned orders dated 24.04.2013 and 11.09.2013 are quashed and set aside. The application being Misc. Application No.293 of 2009 registered before the Court of learned Addl. Chief Metropolitan Magistrate, Court No.30, Ahmedabad is allowed and the trial Court concerned is directed to register the complaint given by the petitioner under Section 138 of the N.I. Act and to issue process to the accused. The petition stands disposed of accordingly. Direct service is permitted.

(GITA GOPI, J)

PRAVIN KARUNAN