Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 673 (MP)

Tulsiram Narwariya v. Mahesh Chandra

2011-06-24

S.N.AGGARWAL

body2011
ORDER S.N. Aggarwal, J. 1. This petition under Section 482 of Code of Criminal Procedure filed by the Petitioner is directed against the order dated 3rd of February,2007 passed by the Sessions Judge, Gwalior in Criminal Revision No. 325/06 whereby the order dated 06th October, 2006 passed by the learned Judicial Magistrate First Class, Gwalior in a complaint case under Section 138 of the Negotiable Instruments Act, 1881 has been affirmed. 2. A complaint under Section 138 of the Negotiable Instruments Act,1881 ( herein after, referred to as the "Act") filed b y the Petitioner against the Respondent was accompanied with an application under Section 142(b) of the Act for condonation of the delay of 28 days in filing the complaint. The delay was sought to be condoned on the ground that the Petitioner being the only son of his father could not file the complaint in time as his father had suffered a fracture for which a medical certificate was also annexed with the condonation application. The delay in filing the complaint was of 28 days. The Trial Court as well as Revisional Court dismissed the complaint on the ground of limitation holding that the Petitioner has failed MCRC 1896/07 to explain delay of each day in filing the complaint. In view of the Revisional Court, the Petitioner was required to explain the delay of each and every day till the date of filing of complaint. This view of the Trial Court as well as of the Revisional Court is oppose to law. Law on this aspect is well settled that a litigant is not required to explain delay of each and every day; it is sufficient for him if he gives sufficient cause for delay in filing appeal or application before Court. Reliance in support of this view is placed on a judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji, AIR 1987SC 1353. 3. Section 142(b) of the Act empowers the Court before which complaint under Section 138 of the Act is filed to entertain the complaint even after expiry of limitation period of thirty days, in case the complainant shows sufficient cause for such delay. 4. Katiji, AIR 1987SC 1353. 3. Section 142(b) of the Act empowers the Court before which complaint under Section 138 of the Act is filed to entertain the complaint even after expiry of limitation period of thirty days, in case the complainant shows sufficient cause for such delay. 4. In the case of Vedabai v. Shantaram Baburao Patil, (2001)9 SCC 106 , it was held by the Hon'ble Supreme Court that in exercising the discretion under Section 5 of the Limitation Act, Courts should take a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of only few days; where in the former case consideration of prejudice to either side will be a relevant factor and the case calls for more cautious approach, in the later case no such consideration may arise and such case deserves a liberal approach. No hard and fast rule can be laid down and the Court should exercise discretion on the facts of each case keeping in mind and construing the expression "sufficient cause" and principle that advancing substantial justice is of prime importance. 5. However, while dealing with the application seeking condonation of delay, it is always desirable to take a liberal and not a rigid or too technical view and the Court has to keep in MCRC 1896/07 mind that discretion in the case has to be exercised to advance substantial justice. 6. Considering the above legal position coupled with the fact that there was delay of only 28 days, that too had occasioned on account of fracture of father of the Petitioner/complainant, I am inclined to condone the delay caused in filing of the complaint by the Petitioner against the Respondent. Needless to mention that since nobody has appeared for the Respondent despite service, this Court was deprived of the advantage of hearing the views of his counsel. 7. In view of the foregoing and having regard to the facts and circumstances of the case, this petition is allowed and the impugned order dated 03rd February,2007 passed by the Sessions Judge in Criminal Revision No. 325/06 as well as order dated 06th October, 2010 passed by Judicial Magistrate First Class, Gwalior are hereby set aside. The Trial Court is directed to proceed further in the case as per law. 8. The Trial Court is directed to proceed further in the case as per law. 8. Parties are directed to appear before the concerned Trial Court for directions at 10.30 a.m. on 05th July, 2011. 9. A copy of this order be sent to the concerned Trial Court for information and necessary compliance.