M/S.A.V.Builders (R-1) vs Dugar Finance & Investment Ltd
2023 Latest Caselaw 9610 Mad

Citation : 2023 Latest Caselaw 9610 Mad
Judgement Date : 3 August, 2023

Madras High Court

M/S.A.V.Builders (R-1) vs Dugar Finance & Investment Ltd on 3 August, 2023

                                                                     Crl.R.C.Nos.1006 and 1007 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 03.08.2023

                                                      CORAM

                                  THE HONOURABLE MRS. JUSTICE R. HEMALATHA

                                          Crl.R.C.Nos.1006 and 1007 of 2023
                                        and Crl.M.P.Nos.8084 and 8085 of 2023

                     M/s.A.V.Builders (R-1)
                     Rep. by its Managing Partner,
                     P.Chandru,
                     No.106, Kodambakkam High Road,
                     Mahalingapuram,
                     Nungambakkam,
                     Chennai – 600 034.            ... Petitioner in Crl.R.C.No.1006 of 2023

                     S.Arun Kumar                     ... Petitioner in Crl.R.C.No.1007 of 2023

                                                        Vs.

                     Dugar Finance & Investment Ltd.,
                     Rep. by its Authorized Signatory,
                     T.Rajasekar,
                     Office at No.34 (123)
                     Dugar Towers, 7th Floor,
                     Marshalls Road, Egmore,
                     Chennai – 600 008.            ... Respondent in both cases

Common Prayer : Criminal Revisions filed under Section 397 & 401 of Criminal Procedure Code 1973, to set aside the orders passed in Crl.M.P.No.11 of 2023 in SR.No.79 of 2020, dated 23.05.2023 by the learned Metropolitan Magistrate, FTC-I, Egmore @ Allikulam, Chennai.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1006 and 1007 of 2023

For Petitioner in both cases : Mr.R.Baskar

COMMON ORDER Challenging the orders dated 23.05.2023 in Crl.M.P.No.11 of

2023 in SR.No.79 of 2020 passed by the learned Metropolitan

Magistrate, FTC-I, Egmore @ Allikulam, Chennai, the present criminal

revisions are filed.

2. The petitioners in both the Criminal revisions are accused in

a private complaint under Section 200 of Cr.P.C., filed by the respondent

herein for an offence under Section 138 of the Negotiable Instruments

Act. Though the complaint was filed on time, it was returned for some

reason and thereafter there was a delay of 310 days in representing the

complaint before the Magistrate. In the petition in Crl.M.P.No.11 of 2023

in SR.No.79 of 2020, the present respondent had stated that the person

who is representing the respondent company met with an accident and

sustained severe injuries on his leg. Accepting the reasons assigned by

the respondent company, the learned Trial Court Judge vide his orders

dated 23.05.2023 allowed the said petition by observing thus:

“Heard both side enquiry. Admittedly there is 310

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1006 and 1007 of 2023

days of delay in representing the complaint. The reason stated by the petitioner is that due to accident got severe injury over his leg. Medical proof has been filed in the present petition. When the petitioner was informed by his counsel about the representation delay he came to know about the same and immediately filed this petition. Hence Petitioner could not represent the complaint in time.

Admittedly, there is no provision for condoning the delay in the NI Act. Clause (b) Section 142 of the N.I. Act, states that " Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complaint satisfies the court that he had sufficient cause for not making a complaint within such period.

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 Hon'ble Apex Court in N.Balakrishnan Vs M.Krishnamurthy [1998 (7) SCC 123];

It must be remembered that in every case of delay,

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1006 and 1007 of 2023

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 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. Whole 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.

As discussed above, the petitioner/ company has to lodge a complaint within the statutory period but there was a delay, Since the petitioner company concerned staff resigned from the job caused delay is having valid cause and Justice shall not be denied on mere technicalities. Hence this court inclined to allow this petition with following conditions.”

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1006 and 1007 of 2023

3. Mr.R.Baskar, learned counsel for the revision petitioners

contended that the complaint was filed during Covid 19 pandemic

situation and the same was returned to the complainant (the respondent

herein) for rectifying certain defects. The complainant should have

represented the complaint within a period of 30 days, but there is a delay

of 310 days. According to the complainant, the person who is

representing the respondent company met with an accident and therefore

he could not appear before the Court. However no medical records were

furnished by them to substantiate this content. Therefore, the order

passed by the trial Court is erroneous and need to be set aside.

4. Though the learned counsel appearing for the revision