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2012 DIGILAW 3870 (MAD)

Joy Mon v. C. Sasit Lovely

2012-09-12

B.RAJENDRAN

body2012
Judgment :- 1. This Criminal Revision Petition is filed questioning the correctness of the order dated 25.11.2011 passed in Crl.M.P.No. 6647 of 2011 on the file of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai -600 015. By the said order dated 25.11.2011, the Court below dismissed the application filed by the petitioner to condone the delay of 30 days in filing the Complaint under Section 138 of the Negotiable Instruments Act. 2. According to the petitioner, he had handed over the returned cheque, memo issued by the bank, copy of the statutory notice etc., to his counsel on record and requested her to file the complaint under Section 138 of the Negotiable Instruments Act, who in turn asked the petitioner to hand it over to one of her colleagues. Accordingly, the petitioner handed over the documents to the junior counsel on 09.05.2012. While so, the counsel on record, due to viral fever, was admitted in hospital and bed ridden. The counsel on record could recover only during the first week of June 2011 and this had led to the delay in filing the complaint. Further, the court holidays intervened and therefore also the complaint could be presented only after re-opening of the Court after summer vacation. This, according to the petitioner, had led to 30 days delay in filing the complaint. In order to condone the delay of 30 days, the petitioner has filed Crl.M.P. No. 6647 of 2011 before the Court below and the same was dismissed. 3. The Court below issued notice to the respondent and the respondent also filed a counter opposing the petition. According to the respondent, the debt itself is a time barred debt. Further, the petitioner had alleged that the sum of Rs.4,00,000/-was borrowed during December 2006, and the same was acknowledged by an acknowledgment dated 10.06.2010, for which the cheque dated 30.09.2010 was issued. On presentation of the cheque on 02.11.2010, it was returned for the reasons 'insufficient funds'. Subsequently, the cheque was presented on 08.02.2011 and it was again returned for the same reason. Finally, the cheque was presented during 4th week of March 2011 and the same was dishonoured on 22.03.2011. After issuing a statutory notice on 26.03.2011, which was received by the respondent on 28.03.2011, the petitioner did nothing or taken any steps to file the complaint in time. Finally, the cheque was presented during 4th week of March 2011 and the same was dishonoured on 22.03.2011. After issuing a statutory notice on 26.03.2011, which was received by the respondent on 28.03.2011, the petitioner did nothing or taken any steps to file the complaint in time. It is the case of the petitioner that the respondent acknowledged the debt on 10.06.2010 that is after the limitation period is over. Further, the amount was borrowed during December 2006 and the three years period of limitation is over during December 2009. Therefore, the complaint itself is not maintainable and it cannot be entertained on the basis of a past debt acknowledged after the period of limitation by the respondent. The cheque itself was not issued for any legally enforceable debt and it cannot be entertained. Finally, under Section 142 of the Limitation Act and the proviso to Sub-section (b) of Section 142 of the Act, the petitioner can prove the existence of sufficient cause for not filing the complaint within the time and in the absence of the same, the complaint cannot be entertained. Merely because the counsel on record fell ill, it will not enure to the benefit of the petitioner to contend that the delay is bonafide and not wilful. In any event, the counsel for the petitioner was hospitalised only on 15.05.2011, whereas, the last date for filing the complaint was 13.05.2011. The admission of the counsel on record in a hospital will not cure the defect or it will entitle the petitioner to get the delay in filing the complaint condoned. 4. The Court below, after considering the rival contentions, dismissed the application filed by the petitioner for condonation of the delay of 30 days in filing the complaint on the ground that the reasons for condonation of delay are not bonafide and convincing besides that the petitioner has not filed any proof to show that his counsel on record fill ill at the time of filing the complaint. The medical records were produced only at the time of argument and therefore, the same will not entitle the petitioner to get the delay condoned. It was also held by the Court below that a time barred debt cannot be imposed or realised by any subsequent acknowledgment or agreement. 5. The medical records were produced only at the time of argument and therefore, the same will not entitle the petitioner to get the delay condoned. It was also held by the Court below that a time barred debt cannot be imposed or realised by any subsequent acknowledgment or agreement. 5. The learned counsel for the petitioner would contend that the petitioner had shown sufficient cause for condonation of 30 days delay inasmuch as the counsel on record engaged by him was admitted in a hospital and it led to the delay. Even though the discharge summary was not produced along with the petition for condonation of delay, admittedly, it was produced at the time of argument and there is no reason to suspect the same. When the petitioner had made out a case for condonation of the delay, the Court below, in order to subserve the interest of justice, ought not to have dismissed the application for condonation of a mere 30 days delay in filing the petition and he prayed for allowing this Criminal Revision Petition. 6. The learned counsel for the respondent would contend that the last date for filing the complaint is 13.05.2011 whereas the counsel on record for the petitioner was admitted in the hospital on 15.05.2011 which has got nothing to do with the alleged delay in filing the complaint. Therefore, the admission of the counsel on record for the petitioner in the hospital on 15.05.2011 will not be a reason for condonation of the delay. 7. I heard the counsel for both sides and perused the records. At the outset, it has to be seen whether the dismissal of the application filed by the petitioner for condonation of delay of 30 days in filing the complaint under Section 138 of the Negotiable Instruments Act by the court below is justifiable or not. In fact, the Court below, in the preamble portion of the order stated that whether a debt is barred by limitation or not can only be decided at the time of trial, but in the latter portion, the Court below concluded that a time barred debt cannot be imposed or realised by way of any subsequent acknowledgment or agreement. In fact, the Court below, in the preamble portion of the order stated that whether a debt is barred by limitation or not can only be decided at the time of trial, but in the latter portion, the Court below concluded that a time barred debt cannot be imposed or realised by way of any subsequent acknowledgment or agreement. The Court below failed to consider that what is required to be seen while allowing an application under Section 142 of the Negotiable Instruments Act is whether there exists a sufficient cause for condonation of the delay of 30 days in filing the complaint or not. 8. In this case, admittedly, the counsel on record for the petitioner was admitted in a hospital for her ailment. No doubt, the court below found that at the time of filing the application for condonation of delay, medical records pertains to the illness of the counsel on record were not produced but the discharge summary and other medical records were filed only at the time of argument to show that the counsel on record was admitted in hospital on 15.05.2011 and it led to the delay in filing the complaint. 9. A perusal of the affidavit filed in support of Crl.M.P. No. 6647 of 2011 would indicate that the counsel for the petitioner was suffering from viral fever for some time and thereafter, she was admitted in the hospital on 15.05.2011. Therefore it is not as if the counsel for the petitioner suffered ailment only on 15.05.2011 and immediately she was admitted in the hospital. It is evident that the counsel for the petitioner was suffering from illness even prior to her admission in the hospital on 15.05.2011. In the affidavit, it was also stated that the documents required for filing the complaint were handed over by the petitioner even on 09.05.2011 i.e., well within the period of limitation, but due to the illness of the counsel on record, the complaint could not be filed. In fact, in the discharge summary, it was stated that the counsel for the petitioner was suffering from Nephritic Syndroma and admitted with febrile episode. She was also diagnosed for Nephroitic Syndrome and Febrile episode. The counsel for the petitioner was admitted on 15.05.2011 and discharged on 31.05.2011 as could be seen from the discharge summary. In fact, in the discharge summary, it was stated that the counsel for the petitioner was suffering from Nephritic Syndroma and admitted with febrile episode. She was also diagnosed for Nephroitic Syndrome and Febrile episode. The counsel for the petitioner was admitted on 15.05.2011 and discharged on 31.05.2011 as could be seen from the discharge summary. Therefore, the period during which the counsel for the petitioner was admitted in the hospital had led to the delay and in any event such delay cannot be put against the petitioner or it will take away the right of the petitioner to say that he had shown sufficient cause for condonation of the delay. Therefore, according to the counsel for the petitioner, the delay is neither wilful nor wanton but for the reasons beyond his control. 10. It could be seen from the records that the petitioner handed over the documents required for filing the complaint on 08.05.2011 or 09.05.2011 and it was handed over to the colleague of the counsel for the petitioner. Subsequently, the counsel for the petitioner fell ill and admitted in the hospital on 15.05.2011. Even at the time when the petitioner handed over the documents, the counsel for the petitioner was suffering from illness which led to her hospitalisation on 15.05.2011. Therefore, I am of the view that the petitoiner had sufficiently explained the cause for the delay in filing the complaint. The finding of the court below is that the discharge summary relating to the admission of the counsel on record in hospital was not filed along with the application but filed only at the time of argument in the application and therefore the delay cannot be condoned is unsustainable. A perusal of the order passed by the Court below would also indicate that much emphasis was given by the court below to the fact that acknowledgment of debt or promise to pay after the period of limitation is not legally sustainable. This has weighed the court below more in dismissing the application for condonation of delay. 11. It is well settled that while considering the reason for delay, the Court should not analyse the merits of the case. If the reasons given by the courts below for dismissing the application are looked into, it can be concluded that the court below went into the merits of the case while dismissing the application for condonation of delay. 11. It is well settled that while considering the reason for delay, the Court should not analyse the merits of the case. If the reasons given by the courts below for dismissing the application are looked into, it can be concluded that the court below went into the merits of the case while dismissing the application for condonation of delay. 12. In so far as limitation is concerned, though this Court cannot go into the details of the same as it will leads to merits of the case, suffice it to say that under Section 25 (3) of the Negotiable Instruments Act, even a time barred debt can be promised to be paid. In this context, the learned counsel for the petitioner also relied on the decision of the Karnataka High Court reported in (Adivelu by L.R.s vsw. Narayanachari) AIR 2005 Karnataka 236 wherein in para Nos. 14 and 17, it was held as follows:- "14.) Since, in the present case, the defendant, by endorsement/writing, has acknowledged his liability under the pronotes, made part payment and continued or extended the period (limitation) to pay the amount, what requires to be considered in the facts and circumstances of the case is, whether that endorsement or the pronotes could be considered or taken as 'promise' or not and, for this purpose, the parties will have to go for trial. In other words, based on the plaint averments only, without ascertaining the real intention of the parties in the facts and circumstances of the case, it cannot be held, whether the recital in the endorsements amounts to a 'promise' or not. 15.).... 16.).... 17.)In the case on hand, not only there is acknowledgment, there is even part payment accepted by the plaintiff besides recital extending the period (limitation), though all this was after the expiry of the limitation period. It is a settled law that promise to pay time-barred debt is also a valid consideration. So, wheher the fact and circumstances show a 'promise' attracting S.25 (3) of the Act or not could be decided only after evidence is adduced by the parties at the trial and not earlier to that even before written statement is filed. In view of the above, there is no error of jurisdiction or illegality or perversity in the impugned order to interfere at this stage." 13. In view of the above, there is no error of jurisdiction or illegality or perversity in the impugned order to interfere at this stage." 13. In the said decision of the Karnataka High Court, the judgment of the Division Bench of this Court was referred to which was reported in (N.E. Ethirajulu Naidu vs. K.R. Chinnakrishnan Chettiyar) AIR 1975 Madas 333 wherein the Division Bench of this Court held that a promise under Section 25 (3) of the Contract Act to pay a debt may be made after the debt has become time barred. 14. In the present case, at this stage, this Court cannot go into the merits of the case and examine whether the respondent is justified in contending that the debt is a time barred debt or not and it can be decided only in the course of trial. Suffice it to say that the delay of 30 days in filing the Complaint was properly explained by the petitioner and sufficient cause was shown by him for condonation of the delay. Therefore, the Court below shall decide the question of acceptance of debt after the due date independently without recourse to any of the observations made in this order. 15. In view of the above discussion, this Criminal Revision Petition is allowed by setting aside the order dated 25.11.2011 passed in Crl.M.P. No. 6647 of 2011 on the file of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai - 600 015.