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2016 DIGILAW 396 (KAR)

C. Ananda Reddy v. S. Jayaram

2016-05-11

ANAND BYRAREDDY

body2016
ORDER : Anand Byrareddy, J. Heard the learned counsel for the petitioner and perused the record. The petitioner was the accused before the court below, against whom proceedings were initiated by the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity). 2. It transpires that on 20.12.2006, the petitioner and the respondent had entered into a Memorandum of Understanding, pursuant to which, the petitioner had issued a cheque. It transpires that there was a difference of opinion between the petitioner and the respondent and the petitioner was under pressure to succumb to the demands of the respondent and was compelled to issue the cheque as protection money to live in peace, for otherwise, it was threatened that the petitioner's existence would be made difficult in the area, where he had purchased the house. It then transpires that the cheque had been presented for encashment by the respondent and was dishonoured. It is in that background that a legal notice is said to have been issued, but which was never served on the present petitioner. However, the respondent filed a private complaint on 29.5.2007 and it was beyond the time prescribed under the NI Act. The complaint was not accompanied with any application seeking condonation of delay, which is provided for under the proviso to Section 142 of the NI Act. It transpires that it is only on 30.6.2007, the respondent, realising that there was a delay in filing the complaint, has chosen to file an application seeking condonation of delay. The application, however, was filed by the counsel appearing for the respondent, without any affidavit of the complainant accompanying the same, assigning a vague reason that the respondent was suffering from 'water disease', which is unknown to medical sciences. It transpires that the court below had proceeded to entertain the application. The petitioner was issued notice on the application seeking condonation of delay and he had promptly entered appearance and had filed objections, to the effect that an application could not be filed belatedly seeking condonation of delay and it certainly could not be filed by the advocate for the complainant, unless it was supported by an affidavit of the complainant assigning cogent reasons for the delay. And on this note, the court had ordered for an inquiry on the application and even during the course of the inquiry, it was elicited in the cross-examination of the complainant by the petitioner that the medical certificates sought to be produced could not support the case for the delay, as it pertained to the period much later to the period during which he was said to be indisposed. Notwithstanding the same, the court below has condoned the delay and has proceeded further. It is at that stage that the present petition is filed. 3. This court, while taking note of the judgment of the Supreme Court, in case of Pavan Kumar Ralli v. Maninder Singh, AIR 2014 SC 3512 , had admitted the matter and had granted stay of further proceedings of the matter before the court below. It is thereafter that the present petition is posted before this court for hearing, a full 7 years after it was admitted and stay order was granted. 4. The learned counsel for the petitioner would firstly contend that the delayed application could not be entertained. The complaint being filed after a delay must be accompanied by an application seeking condonation of delay and hence, the application could not have been entertained. Secondly, it could not have been filed by the Counsel for the complainant and it should have at least been accompanied by an affidavit of the complainant giving cogent reasons. Thirdly, the reasons assigned are untenable and are not established before the court below and notwithstanding the same, the delay has been condoned. The learned counsel would also submit that the cheque issued was not for any legal consideration. The complainant had the support of several persons, whose modus opened was to prevent outsiders from purchasing the property or building a house anywhere in the vicinity of the area where they resided, unless such outsiders paid protest money and therefore such demand was made on the petitioner. It is pursuant to the so-called Memorandum of Understanding in this regard, that a cheque was issued by the petitioner and hence it was not issued for any legal consideration. Since the cheque is not issued in consideration of any legally enforceable debt, the proceedings are misconceived and could not have been entertained. It is pursuant to the so-called Memorandum of Understanding in this regard, that a cheque was issued by the petitioner and hence it was not issued for any legal consideration. Since the cheque is not issued in consideration of any legally enforceable debt, the proceedings are misconceived and could not have been entertained. Further it is contended that with the amendment to the NI Act, incorporating Section 142A, the court below would no longer have jurisdiction in respect of the matter and that it cannot be entertained by the court below. 5. From the above facts and circumstances, it is evident that the delay in filing the complaint was about 13 days and since the application seeking condonation of delay was filed after 33 days, the total delay would be 46 days, according to the petitioner. The question as to whether the delay could have been condoned for good reason, is not in doubt, since the proviso to Section 142 of the NI Act does afford discretion to the court below to condone the delay. As noticed by the Supreme Court, in Pavan Kumar Ralli, supra, proviso to clause (b) of Section 142 of the NI Act was incorporated in the year 2002 by way of amendment and the object was to overcome the technicality of limitation period that can be raised in a complaint being filed belatedly after the prescribed period and the objects and reasons to the Amendment Bill of 2002 suggested that the introduction of the proviso was to provide discretion to the court to take cognizance of the offence even after expiry of the period of limitation. Only with a view to obviate the difficulties on the part of the complainant, proviso to clause (b) of Section 142 of the NI Act was inserted in the year 2002. Therefore, this proviso was intended to save complaints from being barred by limitation. There is no upper limit of the delay which can be condoned by the court. In other words, if the complainant could sufficiently explain the delay in filing the complaint belatedly, there is no bar for the court, if the court is satisfied of the reasons assigned, to condone the delay. That being the case, even if there was a belated application, which is filed after lodging the complaint, whether it causes any injustice or prejudice to the accused would be a question. That being the case, even if there was a belated application, which is filed after lodging the complaint, whether it causes any injustice or prejudice to the accused would be a question. If there is no bar set as to the period, within which a complaint could be entertained even after a delay, there is no reason why such application being filed, on noticing that there was a period of delay, which required to be explained. Therefore, upon holding an inquiry in the present case on hand, having accepted the explanation, which was indifferent and may be not an accurate explanation for the condonation of delay, if accepted, would result in the complaint being thrown out, notwithstanding the delay was not of such a degree, which did not merit consideration by the court below. The shoddy manner in which the delay is sought to be explained by itself ought not to deter the court from entertaining the complaint especially, when the delay was not of a great duration. 6. In that view of the matter, leaving other questions open, as to the jurisdiction by virtue of the amended Act and the contention that the presumption under Section 139 of the NI Act would stand discharged on the face of it, when the agreement under which the cheque was issued was an unlawful agreement and the cheque was not issued in support of a legally recoverable debt and hence, the burden would be on the complainant to establish that it was issued in consideration of a legally enforceable debt, the petition stands disposed of. 7. The Registry is directed to remit the record to the court below and the court below shall proceed with the complaint afresh and address the question of jurisdiction in the first instance before proceeding further in the matter. 8. Insofar as the judgment in Pavan Kumar Ralli ( AIR 2014 SC 3512 ) is concerned, that was a case where the complainant proceeded on the footing that there was no delay in filing the complaint and the accused-respondent therein having challenged the matter before the High Court and for the first time, having raised the question of limitation, the High Court had quashed the proceedings on the footing that there was indeed delay. The matter having been carried to the Supreme Court, the Supreme Court has observed that the complainant had chosen to calculate the period of delay from the date of issuance of the legal notice and not from the date of issuance of the hand written note, issued in the first instance. The Supreme Court has opined that since Section 138 of the NI Act does not prescribe a form of notice, the hand written note, which was issued in the first instance, could be taken as the starting period of limitation and accordingly held that there was indeed delay. It was held that when the issue of limitation was raised before the High Court for the first time, nothing prevented the High Court from condoning the delay or in remitting the matter to the High Court to consider the question of limitation and accordingly remitted the matter to the trial court with liberty to the complainant to explain the delay. While parting with the case, the Supreme Court has expressed that it ought not to be taken as enabling any complainant to file a belated application seeking condonation of delay much after the presentation of the complaint. The question however was left open. 9. Hence, this court does not consider to be unlawful or illegal to hold that the delay that was condoned does not cause prejudice to the petitioner herein. 10. Hence, the petition stands disposed of.