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2015 DIGILAW 1220 (ALL)

P. H. I. SEEDS (P) LIMITED v. STATE OF U. P.

2015-05-14

BHARAT BHUSHAN

body2015
JUDGMENT Hon’ble Bharat Bhushan, J.—Heard Sri Prashant Mishra, learned counsel for the applicant and learned AGA for the State. 2. This petition under Section 482 Cr.P.C.has been preferred against the order dated 2.2.2015 passed by Additional Chief Judicial Magistrate, Etawah in Complaint Case No. Nil/2015, under Section 138 Negotiable Instruments Act, 1881 (in short, N.I. Act) (PHI Seeds Pvt.Ltd. v. Shailendra Tiwari) returning the complaint filed by the applicant on the ground of delay. 3. It appears that applicant/complainant filed a criminal complaint under Section 138 N.I.Act against respondent No. 2 for dishonouring of the cheque. It appears that respondent No. 2/accused did not appear before the Metropolitan Magistrate at Hyderabad. Following the recent judgment of the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra and another, 2014(7) ADJ 115 (SC), the Magistrate at Hyderabad passed the following order : “In view of the holding of the Hon’ble Supreme Court of India that a territorial jurisdiction is restricted to the Court where a Cheque is dishonoured by the Bank on which it is drawn and further where the proceedings have gone to the Stage of Section 145(2) of N.I. Act or beyond shall be deemed to have been transferred to the Court where it is presently pending the Complaint Case is transferred to this Court for filing before proper Court as per the judgement of the Hon’ble Supreme Court.” 4. This order was passed on 9.10.2014. Applicant managed to file his complaint at Etawah only after 53 days from the date of expiry period of 30 days as fixed by the Apex Court. 5. In paragraph 22 of the judgment in Dashrath Rupsingh Rathod (Supra), the Apex Court has held thus : “Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.” 6. Learned Magistrate, Etawah considered the mandate of Apex Court and decided that the complaint had not been filed within 30 days as prescribed by Apex Court. Therefore, it was not sustainable and complaint was again ordered to be returned to the complainant vide order dated 2.2.2015. This order is under challenge before this Court. 7. As stated earlier, respondent No. 2 had not appeared before the trial Court, therefore, no useful purpose will be served by issuing notices to respondent No. 2. Considering the circumstances, notices to respondent No. 2 are not necessary. Learned counsel for the applicant has also relied on a judgment of Kerala High Court in A. Rajagopal Karunan v. Salim Raj and others, 2015 (1) KLJ 372. 8. Learned counsel for the applicant submits that he had received the information regarding order dated 9.10.2014 passed by the Magistrate, at Hyderabad rather late. The aforesaid order indicates that authorized person of company was not present on 9.10.2014. In any case, learned counsel for the applicant has submitted that only delay of 53 days has occurred as district Etawah is at a great distance from Hyderabad. It is further submitted that the learned Court below failed to appreciate the facts explaining the cause of delay of 53 days in filing the complaint. 9. I have carefully perused all the materials on record. It is further submitted that the learned Court below failed to appreciate the facts explaining the cause of delay of 53 days in filing the complaint. 9. I have carefully perused all the materials on record. It is apparent that learned Magistrate, Etawah has primarily dismissed the delay condonation application on the ground that the time fixed the Apex Court has not been followed. 10. Madras High Court in Gopal Pratapram Purohit v. K.S. Maideen Batcha, decided on 23.2.2015 held thus : “Section 5 of the Limitation Act would apply except when specifically excluded. There may be very many cases wherein, complainants of offence under Section 138 of the Negotiable Instruments Act are unable to represent the complaint before appropriate Court in keeping with the decision in Dashrath Rupsingh Rathod v. State of Maharashtra, 2014(4) CTC 666, within the one month window provided therein. Whether they are justified in not doing so within the specific periods would be a question for consideration by Court as otherwise grave injustice could result.” 11. Kerala High Court has also permitted the condonation of delay in similar circumstances in A. Rajagopal Karunan v. Salim Raj and others, 2015 (1) KLJ 372. 12. Considering the facts and circumstances of the case and the complaint which prima facie discloses commission of an offence under Section 138 N.I. Act, the complaint cannot be dismissed unless the point of condonation of delay has been decided judiciously after hearing both sides. 13. In the circumstances, the present petition under Section 482 Cr.P.C. is allowed. The order dated 2.2.2015 passed by the Judicial Magistrate, Etawah is hereby set aside. Learned Magistrate is directed to decide delay condonation application on merits after service on respondent No. 2. On their appearance, learned Court below shall hear both sides on the question of condonation of delay and shall pass appropriate order in accordance with law. 14. The petition under Section 482 Cr.P.C. is disposed off accordingly. ——————