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2015 DIGILAW 892 (KAR)

G. THIMMAPPA v. SHIVARAJ

2015-08-10

A.V.CHANDRASHEKARA

body2015
ORDER 1. Heard the learned counsel appearing for the parties. 2. The present petition is filed under Section 397 of Cr.P.C., challenging the concurrent finding given by the learned JMC CourtII at Raichur in Criminal Case No.600/2007 and affirmation of the same by the learned Second Additional Sessions Judge at Raichur in Criminal Appeal No.1/2014. 3. The petitioner was the accused in Criminal Case No.600/2007 in the case initiated by the respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, (for short ‘the Act’), on filing the complaint before the learned JMFC Court. 4. The case of the complainant/respondent is that the petitioner herein is known to him very well and he had requested him to advance a handloan of Rs.1.5 lakhs and he is said to have issued a cheque of Rs.1.5 lakhs on 09.08.2000, drawn on Syndicate Bank, Deodurga Branch. The said cheque was presented for payment and it was returned with an endorsement “insufficient amount in the account of the holder” vide memo dated 22.10.2006. Later on, the petitioner got issued the legal notice on 28.10.2006, calling upon him to repay the said amount, lest he would be forced to initiate criminal proceedings. In spite of the receipt of the legal notice got issued on 22.10.2006, the petitioner/accused did not repay the money and hence complaint was filed by the respondent. In view of delay of 5 days in filing the complaint, applicant had filed an application as per proviso to Section 142(b) of the Act, seeking condonation of delay in filing the complaint. In spite of filing of this application, the learned JMFC did not consider the same and proceeded to record the evidence. 5. The complainant has been examined as PW.1 and has got marked as many as five exhibits as Exs.P1 to P5. The accused has been examined as DW.1 and has got marked four exhibits as Exs.D1 to D4. He has denied the charges levelled against him. According to the accused, he wanted to purchase 6 acres 3 guntas in Sy.No.14 of Gilesugur village, Raichur district from one Sri.Yenkobachar and that he had paid a sum of Rs.1.5 lakhs as advance to Sri.Yenkobachar. The cheque in question is said to have been given as security to the complainant, till the sale transaction materialized in favour the complainant and that it was not a loan transaction. 6. The cheque in question is said to have been given as security to the complainant, till the sale transaction materialized in favour the complainant and that it was not a loan transaction. 6. After going through the records, the trial Court has come to the conclusion that the accused is not able to probablise the defence set up by him and therefore, the offence punishable under Section 138A of the Act is proved. The rebuttal evidence placed by the accused is not at all sufficient to discharge this burden to the effect that he has not committed any offence is the finding of the trial Court. Therefore, the trial Court has come to the conclusion that the accused had received a sum of Rs.1.5 lakhs from the complainant and the cheque marked as per Ex.P1 was issued for having received the said amount in discharge of the debt. Therefore, he is stated to have committed the offence punishable under Section 138 of the Act. 7. The First Appellate Court has also reassessed the entire evidence and has come to the conclusion that nothing useful has been elicited from the mouth of PW.1 to rebut the presumption available under Sections 138 and 139 of the Act. It is further held that the accused, though has entered into witness box, has not been able to probablise his defence in regard to the cheque being issued in favour of the complainant as a security only. 8. The main ground urged by the learned counsel for the petitioner Sri.Ameet Kumar Deshpande is that there was a delay of five days in filing the complaint and the same has not been condoned by the Trial Court in spite of Court having power under proviso to Section 142(b) of the Act. Therefore, the entire proceedings will have to be quashed and the accused/petitioner is to be acquitted. 9. Per contra, the learned counsel for the respondent has relied upon the decision of the Apex Court reported in 2014 AIAR (Criminal) 951 SC in the case of Pawan Kumar Ralli. As per the facts in this case, the High Court had quashed the entire proceedings initiated under Section 138 of N.I. Act, before the trial Court on the ground of limitation being not considered by the trial Court. As per the facts in this case, the High Court had quashed the entire proceedings initiated under Section 138 of N.I. Act, before the trial Court on the ground of limitation being not considered by the trial Court. Ultimately, Hon’ble Apex Court has held that the High Court should have atleast remanded the matter to the trial Court on the issue of limitation keeping in mind the object of insertion of proviso to Section 142(2)(b) of N.I. Act. 10. Per contra, the learned counsel Sri.Ameet Kumar Deshpande has relied upon the decision of the Hon’ble High Court of Madras rendered in Crl.O.P.No.6944/2009 dated 18.12.2014. In paragraph 9 of the decision, the Hon’ble High Court of Madras has dealt with the decision reported in (1993) 3 SCC 4 in the case of Vanka Radhamanohari Vs. Venka Venkata Reddy. The Hon’ble High Court of Madras has explained the basic difference between Section 5 of Limitation Act and Section 473 of the Criminal Procedure Code. What is held in the said decision is that in order to get the delay condoned under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of delay; whereas Section 473 of Cr.P.C. enjoins a duty on the Court to examine not only whether such delay has been explained but also to see as to whether it is the requirement of the justice to condone or ignore such delay. 11. Per contra, the learned counsel for the respondent has relied upon paragraph No.20 of decision in the case of Pawan Kumar Ralli’s to contend that when the issue of limitation is raised for the first time before the High Court, the delay is deemed to have been condoned. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instrument (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent is to overcome to technicality of limitation. The Statement of Objects and Reasons Appended to the Amendment Bill, 2002 suggests that the introduction of this proviso is to provide discretion to the Court to take cognizance of offence even after expiry of the period of limitation, only with a view to obviate the difficulties on the part of the complainant. 12. Section 142 of N.I. Act is reproduced as below: [142. 12. Section 142 of N.I. Act is reproduced as below: [142. Cognizance of offence – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) a. no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; b. such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138: [provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a compliant within such period.] c. no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class try any offence punishable under Section 138.] 13. In the present case, the complainant had filed an application under Section 5 of the Limitation Act supported by an affidavit sworn by him, explaining the reasons for the delay of five days in filing the complaint. This aspect of the matter, as argued by learned Counsel Sri.Ameet Kumar Deshpande, has not been considered by the trial Court. But, this aspect of limitation had been raised as one of the grounds before the First Appellate Court in the appeal filed under Section 374 of Cr.P.C. by the accused in Criminal Appeal No.1/2014. 14. On perusal of the appeal memo filed in Criminal Appeal No.1/2014, it is seen that in paragraph No.10, a specific ground raised is in regard to the non consideration of condonation of delay of five days. It appears that this ground, though urged in the appeal memo, was not highlighted while submitting arguments on behalf of the accused, before the First Appellate Court. This ground is not at all considered by the First Appellate Court. 15. In fact, the present case stands on a higher footing than the facts found in Pawan Kumar Ralli’s case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment, the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. 15. In fact, the present case stands on a higher footing than the facts found in Pawan Kumar Ralli’s case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment, the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. In the present case, there was a delay of five days and therefore, the complainant has filed an application under proviso to Section 142 (b) of the Limitation Act, which has come into effect on 06.02.2003. In fact, one of the grounds raised before the Hon’ble Apex Court in Pawan Kumar Ralli’s case is that the High Court should have remitted the matter to the trial Court to enable the complainant to file an application in terms of provisions of Section 142(b) of the Act. Ultimately, the Hon’ble Apex Court has allowed the petition invoking the powers vested under Article 142 of the Constitution of India because there was wrong calculation based on a hand note of the complainant therein. 16. Sri.Ameet Kumar Deshpande, learned counsel for the petitioner has vehemently argued that though the defect is technical and it cannot be cured at this stage and the matter will have to be quashed. After going through decision rendered in Pawan Kumar Ralli’s case, it is seen that the power vested in the Apex Court under Article 142 of the Constitution of India was used to remand the matter to the trial Court in order to enable the complainant to file an application for condonation of delay. 17. In view of The decision rendered by the Hon’ble High Court of Madras in the case of A.Rahamathulla @ Maulana Vs. P.A.K.Manohran in Crl.O.P.No.6944/2009, the proceedings will have to be quashed and the matter will have to be remanded to the trial Court for considering the application for Condonation of delay since the proceedings had continued without delay being condoned. It need not be reiterated that prior to amendment effect to Section 142, there was absolutely no scope to the Court dealing with an offence punishable under Section 138 of N. I. Act to condone the delay in filing the complaint. Now power is vested with the trial Court to condone delay liberally in terms of proviso to Section 142(b) of N.I. Act. 18. Now power is vested with the trial Court to condone delay liberally in terms of proviso to Section 142(b) of N.I. Act. 18. The pith and substance of the decision rendered in Pawan Kumar Ralli’s case is that the trial Court is expected to meticulously look into as to whether there is any delay in filing the complaint and whether any application is filed seeking condonation of delay. If such an application is filed, it must be considered at the threshold and to proceed only if delay is condoned. 19. What is the sufficient cause for condonation of delay is dependent upon the facts of each case and delay may be liberally condoned without adopting a pedantic approach as held by the Hon’ble Apex Court in the case of LAO Anantanay Vs. Khathij reported in AIR1987 SCP.1353. The proviso to clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay, such proceedings do not have any force of law. If delay is noticed, the trial Court can even call upon the complainant to file an application for condonation of delay. 20. Therefore, it is expected of all the trial Courts dealing with offence punishable under Section 138 of N. I. Act to direct the office to putup a specific note about the delay, if any, in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process, the judge to specifically indicate that there is no delay in filing the complaint. ORDER The petition is allowed and the proceedings initiated by the trial Court in Criminal Case.No.600/2007 and consequent Criminal Appeal No.1/2014 are quashed. The matter is remitted to the trial Court to pass appropriate orders on the application already filed for condonation for delay, at the earliest and to dispose of the matter on merits, preferably within three months from the date of appearance of the parties. The parties shall appear before the trial Court, without fail, on 21.09.2015 and thereafter, the trial Court to dispose of the matter within three months, after recording evidence afresh. The parties shall appear before the trial Court, without fail, on 21.09.2015 and thereafter, the trial Court to dispose of the matter within three months, after recording evidence afresh. It is made clear that if no delay is condoned in spite of an application is filed, the proceedings will go on in a case for the offence punishable under Section 138 of the Act, it would be no proceedings in the eye of law. Therefore, all the Magistrates dealing with the offence under Section 138 of the Act are expected to first ascertain whether there is any delay in filing the complaint and if there is any delay whether any application has been filed under the proviso of Section 142(b) of the Act, and if filed to consider the same first. If no application is filed seeking condonation of delay, the Court to bring the same to the notice of the complainant who would be entitled to file an application in terms of proviso to Section 142(b) of N. I. Act. The office of the Court, while putting up a note, must indicate as to whether there is any delay and if so how many days of delay and whether any application is filed for condoning the delay.