Jharkhand High Court
Jawed Alam vs The State Of Jharkhand on 22 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.4611 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 4611 of 2022
Jawed Alam, aged about 41 years, son of Md. Javir, Resident of Amla
Toli, Bagru Road, P.O. & P.S.- Lohardaga, Dist.- Lohardaga
.... Petitioner
Versus
1. The State of Jharkhand
2. Radheshyam Sahu, son of Shri Rameshwar Sahu, resident of Veer
Shiva Jee Chowk, P.O. & P.S.- Lohardaga, Dist.- Lohardaga
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Sidhartha Roy, Advocate
For the State : Mr. Pankaj Kumar, P.P.
For O.P. No.2 : Mr. Baibhaw Gahlaut, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
to quash the entire criminal proceeding arising out of Complaint
Case No. 390 of 2018 registered for the offence punishable under
Section 138 of Negotiable Instruments Act, 1881 along with order
taking cognizance dated 30.09.2022 passed by the learned
S.D.J.M., Lohardaga in the said case.
3. The brief fact of the case is that the petitioner issued a cheque to
the complainant which was dishonoured. The petitioner filed
Complaint Case No. 221 of 2016 prematurely however, the said
Complaint Case No. 221 of 2016 ended up in conviction.
4. The learned Sessions Judge, Lohardaga in Criminal Appeal No.
44 of 2017 set aside the judgment of conviction and order of
sentence. The complainant filed Criminal Revision No. 1386 of
2017 which was withdrawn with liberty that the same will not
prejudice in taking legal recourse by the petitioner. The
complainant filed a fresh complaint case being Complaint Case
No. 390 of 2018. Cognizance was taken in that case vide order
dated 11.10.2018 under Section 138 of Negotiable Instruments Act.
The same was challenged by the petitioner in Cr.M.P. No. 4191 of
2018 and a coordinate Bench of this Court vide order dated
23.06.2022 observed that as per proviso of Section 142 (b) of
Negotiable Instruments Act, 1881, the learned S.D.J.M., Lohardaga
was required to condone the delay in filing the complaint as
without recording any condonation of delay in filing the
complaint, cognizance was taken and the coordinate Bench of this
Court set aside the cognizance order and remitted the matter back
to the court concerned to pass fresh order in accordance with law.
5. It is submitted by the learned counsel for the petitioner relying
upon the judgment of Hon'ble Supreme Court of India in the case
of Yogendra Pratap Singh vs. Savitri Pandey & Anr. reported in
2014 10 SCC 713 that in that case, the Hon'ble Supreme Court of
India held that the remedy to the complainant is only to file a
fresh complaint and if the same could not be filed within the time
prescribed under Section 142 (b) of Negotiable Instruments Act,
1881, the recourse of the complainant is to seek the benefit of the
proviso satisfying the Court of sufficient cause.
6. Learned counsel for the petitioner also relied upon the judgment
of Hon'ble Supreme Court of India in the case of P.K. Choudhary
vs. Commander, 48 BRTF (GREF) reported in 2008 AIR SC 1937
wherein, in a case relating to the offences punishable under
Section 166 and 167 of Indian Penal Code, when a complaint
petition was filed belatedly, the Hon'ble Supreme Court of India
observed that the delay in launching the prosecution could not
have been condoned without notices to the accused person of the
case and in such a case the accused person was entitled to get an
opportunity of being heard before delay could be condoned. It is
then submitted by the learned counsel for the petitioner that as in
this case, the delay has been condoned by the learned S.D.J.M.,
Lohardaga without giving any opportunity to the accused person
of the case. Hence, it is submitted that the order taking cognizance
dated 30.09.2022 passed by the learned S.D.J.M., Lohardaga
arising out of Complaint Case No. 390 of 2018 be quashed and set
aside.
7. Learned P.P. on the other hand submits that this is not a case
where for the first time the learned S.D.J.M., Lohardaga exercises
jurisdiction rather the learned S.D.J.M., Lohardaga exercises
jurisdiction in continuation of the order passed by a coordinate
Bench dated 23.06.2022 in Cr.M.P. No. 4191 of 2018. Hence, it is
submitted that no illegality has been committed by the learned
S.D.J.M., Lohardaga in condoning the delay when there is specific
prayer in the complaint itself regarding the grounds for
condoning the delay.
8. Learned counsel for the opposite party no.2 relying upon the
judgment of Hon'ble Supreme Court of India in the case of Sesh
Nath Singh & Anr,. vs. Baidyabati Sheoraphuli Co-operative
Bank Ltd. & Anr. reported in 2021 0 Supreme (SC) 247,
paragraph no.63 of which reads as under:-
"63. Section 5 of the Limitation Act, 1963 does not speak
of any application. The Section enables the Court to
admit an application or appeal if the applicant or the
appellant, as the case may be, satisfies the Court that he
had sufficient cause for not making the application
and/or preferring the appeal, within the time prescribed.
Although, it is the general practice to make a formal
application under Section 5 of the Limitation Act, 1963,
in order to enable the Court or Tribunal to weigh the
sufficiency of the cause for the inability of the
appellant/applicant to approach the Court/Tribunal
within the time prescribed by limitation, there is no bar
to exercise by the Court/Tribunal of its discretion to
condone delay, in the absence of a formal application."
submits that it is a settled principle of law that a separate
petition setting forth the grounds for condonation of delay is not
required.
9. It is next submitted by the learned counsel for the opposite party
no.2 by relying upon the judgment of Hon'ble Supreme Court of
India in the case of Manharibhai Muljibhai Kakadia and Anr. v.
Shaileshbhai Mohanbhai Patel and Ors. reported in 2012 10 SCC
517, paragraph no. 21 of which reads as under:-
"21. In Chandra Deo Singh [AIR 1963 SC 1430 : (1964)
1 SCR 639 : (1963) 2 Cri LJ 397] a four-Judge Bench of
this Court had an occasion to consider Section 202 of the
old Code. The Court referred to the earlier decision of this
Court in Vadilal Panchal [AIR 1960 SC 1113 : (1961) 1
SCR 1 : 1960 Cri LJ 1499] and few previous decisions,
namely, Parmanand Brahmachari v. Emperor [AIR 1930
Pat 30] , Radha Kishun Sao v. S.K. Misra [AIR 1949 Pat
36] , Ramkisto Sahu v. State of Bihar [AIR 1952 Pat 125]
, Emperor v. J.A. Finan [AIR 1931 Bom 524] , Baidya
Nath Singh v. Muspratt [ILR (1887) 14 Cal 141] and it
was held that: (Chandra Deo Singh case [AIR 1963 SC
1430 : (1964) 1 SCR 639 : (1963) 2 Cri LJ 397] , AIR p.
1433, para 8)
"8. ... the object of the provisions of Section 202
(corresponding to present Section 202 of the Code) was to
enable the Magistrate to form an opinion as to whether
process should be issued or not and to remove from his
mind any hesitation that he may have felt upon the mere
perusal of the complaint and the consideration of the
complainant's evidence on oath."
It was further held that an accused person does not
come into the picture at all till process is issued."
that accused person does not come into the picture at all till the
process is issued, hence, certainly, the Magistrate was not
supposed to issue notice to the accused or hearing before
condoning the delay. Hence, it is submitted that this criminal
miscellaneous petition being without any merit be dismissed.
10. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that true it is that it is a settled principle of law that accused
person does not come into the picture at all till the process is
issued but this position of law is true when there is no delay in
launching the prosecution but in case of delay in launching the
prosecution certainly, the accused persons of the case is entitled to
get an opportunity of being heard before the delay be condoned in
view of the judgment of Hon'ble Supreme Court of India in the
case of P.K. Choudhary vs. Commander, 48 BRTF (GREF) (supra)
as well as in view of paragraph no.5 of the judgment of Hon'ble
Supreme Court of India in the case of State of Maharashtra vs.
Sharadchandra Vinayak Bongre & Ors. reported in (1995) 1 SCC
42.
11. The coordinate Bench of this Court after setting aside has
remitted the matter back to the court concerned to pass a fresh
order in accordance with law.
12. So in view of the principle of law settled in the case of P.K.
Choudhary vs. Commander, 48 BRTF (GREF) (Supra), the
learned S.D.J.M., Lohardaga ought to have given an opportunity
of being heard to the petitioner of this criminal miscellaneous
petition who was the accused person before it but having not
done so, the order taking cognizance dated 30.09.2022 passed by
the learned S.D.J.M., Lohardaga arising out of Complaint Case
No. 390 of 2018 is quashed and set aside.
13. The matter is remitted back to the court concerned to pass a
fresh order in accordance with law after giving an opportunity of
being heard to the petitioner.
14. Both the petitioner and the opposite party no.2 are directed to
appear before the trial court on 15.02.2024 for taking instruction
regarding further proceeding of the case.
15. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 22nd January, 2024
AFR/Sonu-Gunjan/-
