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2008 DIGILAW 374 (JK)

Bunty Finance Co. v. Avtar Sethi

2008-10-13

SUNIL HALI

body2008
1. Petitioner-Company filed a complaint under section 138 of Negotiable Instruments Act read with section 420 RPC before the trial court against the respondents. The allegations leveled in the complaint were that in order to discharge part of liability of debt by the respondents a cheque No. 0238436 dated 5.3.2004 for an amount of Rupees eight lakhs was issued in the name of petitioner-company. On the presentation of this cheque before the State Bank of India, ADB Canal Road, Jammu, the same could not be encashed as the payment was not arranged for by the accused-respondents. On the filing of the complaint an objection was taken that the cheque has been presented beyond the time prescribed under the Act. It was stated that the complaint is time barred as it has been presented 14 days beyond the period of limitation. 2. The trial court after hearing the parties has dismissed the complaint of the petitioner on the ground that the cheque has been presented beyond the period of limitation. The trial court while accepting the plea of the petitioner regarding 11 days delay it has not found the explanation tendered by the petitioner regarding delay with effect from 26th April to 29th May 2004 as sufficient. The court held that the petitioner has not explained this delay from 26th April 2004 to 29th May 2004, as a result of which there is no sufficient cause to condone the delay. 3. I have heard the learned counsel for the parties and perused the record. The short question for consideration before this court is whether there was sufficient cause for condoning the delay and what are the powers of the court in a case where balance has to be maintained between judicial power and judicial discretion in condoning the delay. The trial court has perused the matter by analyzing every days delay in the matter of condonation of delay. There is no dispute that every days delay has to be explained, but there is one more duty cast upon the court to see that in order to protect the public cause, the courts have the power to condone in order to advance cause of justice. This power of the court to condone the delay has to be co-related to the fact that while rejecting the application for condonation of delay, the cause of justice should not suffer. This power of the court to condone the delay has to be co-related to the fact that while rejecting the application for condonation of delay, the cause of justice should not suffer. The object of providing limitation is only to ensure that right of a person which has matured on account of limitation should not be disturbed unless it serves the cause of justice. Coming to the case in hand, there was a delay of 14 days out of which trial court felt satisfied with respect to 11 days delay shown by the petitioner. 4. The principle of section 5 of Limitation Act will apply to present procedure also. In examining the import of section 5 of Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other considerations which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone the delay only to advance the cause of justice. 5. Section 5 gives court discretion to be exercised in the way in which judicial power and judicial discretion ought to be exercised. The word sufficient cause should receive a liberal consideration so as to advance cause of justice. 6. Coming to the case in hand regarding delay of three days for which it is said that no sufficient cause has been shown the court below found that 11 days delay has been explained by the petitioner but has failed to explain the delay in respect of three days. The contents of the complaint reveal that the respondents had acknowledged the debt by issuing a cheque in favour of the petitioner. The said cheque was not honoured by the bank on account of insufficient funds. Prima-facie there is acknowledgement that this money is payable by the accused to the petitioner subject to what emerges during the course of trial. In case this petition is dismissed on ground of three days delay cause of justice would suffer. The said cheque was not honoured by the bank on account of insufficient funds. Prima-facie there is acknowledgement that this money is payable by the accused to the petitioner subject to what emerges during the course of trial. In case this petition is dismissed on ground of three days delay cause of justice would suffer. In these types of cases judicial power has to be harmonized with the judicial discretion in order to advance the cause of justice. I find force in this petition. The petition is allowed. Order of trial court is set aside and the petitioners complaint is treated within time. The Magistrate is directed to proceed in the matter after following the procedure. The petition is disposed of.