Madras High Court

M/S. Sri Shanthi Guru Marbles vs M/S Vigneshwara Minerals on 15 June, 2022

                                                                               Crl.O.P.No.1573 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 15.06.2022

                                                      CORAM

                                  THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI

                                              CRL.O.P.No.1573 of 2019

                     M/s. Sri Shanthi Guru Marbles,
                     Proprieties of Mrs.N.Rekha,
                     W/o Navin Kumar,
                     Rep by her power agent, Mr. Navin Kumar,
                     S/o Gowtham Chand,
                     No.316/99, Thiruvottiyur High Road,
                     Chennai – 600 019.                               ...    Petitioner

                                                       Versus
                     M/s Vigneshwara Minerals,
                     Proprieties of Mr.Ramesh Yadhav,
                     Father Name not known,
                     H.No.7-1-510, Mankammathota,
                     Karim Nagar, Telangana – 505 001.
                                                                       ...   Respondent

                     Prayer:-Criminal Original Petition filed under Section 482 of the Code of
                     Criminal Procedure seeking to set aside the order in C.M.P No.3211 of 2017
                     passed by the learned Judicial Magistrate, Thiruvottiyur, Dated 03.09.2018
                     and direct the lower Court to take cognizance of the complaint filed in un-
                     numbered STC No. of 2018 pending before the aforesaid Court.




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https://www.mhc.tn.gov.in/judis
                                                                               Crl.O.P.No.1573 of 2019

                                  For Petitioner     :     Mr.K.Madhan

                                  For Respondent     :     Mr.V.Selvaraj



                                                         ORDER

The petition has been filed to set aside the order passed by the

learned Judicial Magistrate, Thiruvottiyur, in C.M.P No.3211 of 2017

Dated 03.09.2018 and direct the lower Court to take cognizance of the

complaint filed in un-numbered STC No. of 2018.

2.The petitioner herein is the complainant who has preferred a

complaint before the Judicial Magistrate, Thiruvottiyur under Section 138

of Negotiable Instrument Act, against the respondent/accused with the delay

of 240 days. Hence, petitioner/company filed an application to condone the

delay before the said Magistrate in C.M.P No.3211 of 2017 and on hearing

both sides the learned trial Judge concluded that no valid reason was

assigned for the delay of 240 days and accordingly, said application was

dismissed. Aggrieved by the same, the petitioner filed this Criminal

Original petition.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

3.The learned counsel for the petitioner submits that, out of

business transaction, the respondent issued four cheques for a sum of

Rs.21,00,000/- dated 26.07.2016, and when the cheques were presented for

collection before the HDFC Bank Ltd., Thiruvottiyur on 27.07.20216, the

same were returned as “funds insufficient”. Then, the petitioner issued a

statutory demand notice to the respondent on 02.08.2016, for which the

respondent issued a reply notice dated 26.08.2016, in which he admitted his

liability and made a proposal to settle the matter amicably. Thereafter, the

preferred a complaint under Section 138 of Negotiable Instrument Act.

4.The learned counsel for the petitioner/company submitted

that the petitioner mis-placed their original documents and the relevant

materials. So, they were not able to file a complaint within a prescribed

period as mentioned in Section 142 (b) of Negotiable Instrument Act. This

complaint has to be filed within one month from the date on which cause of

action arose under clause (c ) of the provisions of Section 138 of Negotiable

Instrument Act. Further, he submitted that the petitioner/complainat filed a

petition to condone the said delay, but, for the above said reason, the

application was dismissed by the trial Judge holding that no sufficient cause

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

was shown in the petition. Further, he pointed out that, previously there was

business transaction between the petitioner and the respondent, thus, the

petitioner is having valid materials for invoking the proceedings under

Section 138 of Negotiable Instrument Act proceedings. Hence learned

counsel for the petitioner prayed to set aside the impugned order passed by

the learned trial Judge.

5.The learned counsel for the respondent submitted that the

there is no provision to condone the delay under the provisions of the

Negotiable Instrument Act. Besides, the reason stated by the petitioner

were insufficient. Hence, the trial Court rightly dismissed the application.

6. Considering the submissions on either side and also on a

perusal of the records, it reveals that, from the year 2015, there was a

business transaction between the petitioner and the respondent with regard

to delivery of granite blocks. During the course of such business, the

petitioner paid entire invoice amount of a sum of Rs.21,00,000/- to the

respondent through RTGS in two installments of Rs.11,00,000/- and

10,00,000/- dated 23.03.2015 and 25.03.2015 respectively and completed

the entire payment as demanded by the respondent under the ''proforma

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

invoice'' on 25.03.2015. The business transaction was not arranged as the

respondent promised, and when the petitioner demanded for the re-payment,

he issued four cheques dated 26.07.2016 and the same were presented

before the HDFC Bank Ltd., Thiruvottiyur on the next day, which were

returned as ''insufficient fund''. Thereafter, on 02.08.2016 the petitioner

issued a notice to the respondent, for which the respondent replied via

notice on 26.08.2016. On a perusal of the reply notice, it appears that the

respondent admitted the amount received through RTGS from the petitioner.

7. The above facts clearly reveals that transactions may attracts

Section 138 of Negotiable Instrument Act. There was 240 days delay to file

a complaint before the concerned Judicial Magistrate and the reason stated

by the petitioner for delay was that the petitioner/company misplaced the

original documents and so they were not able to file the application before

the trial Court within one month of statutory period. As submitted by the

respondent's counsel, admittedly, there is no provision for condoning the

delay in the Negotiable Instrument Act. Clause (b) Section 142 of the

Negotiable Instrument Act, states that “ Provided that the cognizance of a

complaint may be taken by the Court after the prescribed period, if the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

complaint satisfies the Court that he had sufficient cause for not making a

complaint within such period”.

8.The reason stated for the delay was mis-placement of original

documents. It is natural that there may be lot of possibilities to mis-place the

original documents since the documents are four cheque leaves. Further,

the learned counsel for the petitioner relied upon the Judgment laid down

by this Court in S.K.A.P Balakrishnan Vs Jimmy and argued that length of

delay is not material but reason assigned for the delay is material. Further he

relied upon the Judgment laid down by Our Apex Court in N.Balakrishnan

Vs M.Krishnamurthy [1998 (7) SCC 123];

''A.Limitation Act, 1963 – S.5 – Condonation of delay – Discretion of Court- How to exercise – guidelines stated – Words ''Sufficient cause'' should be construed liberally – Acceptability of explanation for the delay is the sole criterion, length of delay not relevan – In absence of anything showing sole creterion or deliberate delay as a dilatory tactic, Court shold normally condone the delay – However while doing so Court should also keep in mind the consequent litigation expenses to be incurred by the opposite and should compensate him accordingly – where a court condones delay in positive exercise of discretion, superior Court and more particularly the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

revisional Court should not normally disturb the same – But where request for condonation of delay is refused, it would be open to the superior Court to come to its own finding on the basis of explanation for the delay given by the party – delay on the part of defendant-appellant of 883 days is approaching the Court against dismissal of his application to set aside ex-parte decree passed against him – Non action on the part of his advocate explained as cause for the delay – appellant also complaining about conduct of the advocate before consumer forum and getting Rs.50,000/- as compensation – Appellant's explanation for the delay accepted and delay condoned by trial Court – But in revision High Court setting aside the order of trial Court on ground that appellant was negligent and was not careful enough to meet the advocate to verify the stage of the proceedings for a long time – Held, High Court in revision erred in interfering with the exercise of jurisdiction by trial Court in condoning the delay when appellant's conduct did not as a whole warrant castigation his as an irresponsible litigant having regard to present busy and preoccupied life.''

''13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.''

9.As discussed above, the petitioner/companay has to lodge a

complaint within the statutory period but there was a delay, since they

misplaced the original documents. The reasons stated by the petitioner for

delay are sufficient and the petitioner is having valid cause and justice shall

not denied on mere technicalities. Therefore the reason assigned by the trial

Judge was untenable.

10. Hence, the impugned order passed by the learned Judicial

Magistrate, Thiruvottiyur in C.M.P No.3211 of 2017 is set aside. The

learned Judicial Magistrate, Thiruvottiyur is directed to take cognizance of

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1573 of 2019

the complaint as per the manner know to law within a period of two weeks

from the date of receipt of a copy of this order. Accordingly, it is allowed

with condition that the petitioner/company is directed to pay a sum of

Rs.10,000/-(Rupees Ten Thousand Only) as costs to the credit of Madras

High Court Legal Services Committee and the said amount may be utilized

by the office for improvement of infrastructures.

11.Accordingly this criminal Original petition is allowed.

.06.2022