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2019 DIGILAW 1275 (KAR)

Namokar Agencies v. S. Ekanath

2019-06-14

B.A.PATIL

body2019
JUDGMENT : B. A. PATIL, J. 1. This criminal appeal has been preferred by the complainant-appellant challenging the order passed by the JMFC-I Court, Hubballi in un-numbered P.C.No. /2016 dated 11.08.2017. 2. I have heard the learned counsel for appellant-complainant and the learned counsel for respondent-accused. Though this case is posted for admission, with consent of both counsels appearing for parties, it is taken up for final disposal. 3. The gist of the complaint is that the complainant and accused were well acquainted with each other and accused requested the complainant firm for financial assistance of Rs.5,00,000/- for the purpose of production of a film produced by accused No.2. Believing the words of accused No.1, the complainant firm issued two demand drafts for a sum of Rs.2,50,000/- each dated 09.03.2010 and 11.03.2010. Accused No.1 has also undertaken to refund the said amount on 05.01.2011, but he did not make payment and issued a cheque bearing No.831547, drawn on Syndicate Bank, Bangalore, dated 05.01.2011 for a sum of Rs.5,00,000/- but the accused did not pay the amount. Thereafter, the cheque issued by the accused was presented for encashment, but it was returned with a share insufficient balance at the opening of the day. Thereafter, a notice was issued by the complainant to the accused. In spite of service of notice, accused did not pay the amount and as such there was a cause of action to file a complaint. Though the cause of action arose on 01.02.2011, the complaint was registered on 23.07.2011 with a delay of 128 days. The Court below, after considering the fact that there is inconsistency in calculation of delay and as there was no sufficient explanation for the said delay has dismissed the complaint. As per calculation, there is a delay of 128 days in filing the complaint, but the application for condonation of delay contains only 104 days. Even the said application is not supported by any evidence or records. As such, the complaint came to be dismissed by the Court below. Being aggrieved by the same, complainant is before this Court. 4. It is the submission of learned counsel for appellant that the Court below by misinterpreting the provisions of section 142(b) of the Negotiable Instruments Act, (hereinafter referred to as N.I.Act for short), has given a wrong conclusion. As such, the complaint came to be dismissed by the Court below. Being aggrieved by the same, complainant is before this Court. 4. It is the submission of learned counsel for appellant that the Court below by misinterpreting the provisions of section 142(b) of the Negotiable Instruments Act, (hereinafter referred to as N.I.Act for short), has given a wrong conclusion. It is further submitted that as the appellant was not keeping well, he was suffering with jaundice and same has been averred in the application, but the Trial Court, without considering the said fact has come to a wrong conclusion and has wrongly dismissed the complaint. It is further submitted that if the delay is condoned and complaint is entertained, no prejudice would be caused to the respondent-accused. Deliberately the court below has not condoned the delay and has rejected the application and also dismissed the complaint. On these grounds, prayed to allow the appeal and to set aside the impugned order passed by the Trial Court. 5. Per contra, the learned counsel appearing for the respondent-accused, by justifying the order of the Trial Court, has submitted that the Trial Court has discussed all the material in detail and there is no sufficient cause shown by the complainant in the application for condonation of delay in filing the complaint. There is a delay of 128 days in filing the complaint, but in the application the complainant sought for condonation of delay of only 104 days. Even there is a shortage of explanation for 24 days delay in filing the complaint. Under such circumstances, the application and the complaint is liable to be dismissed even without admitting the fact of complainant suffering jaundice, since he has not filed the complaint within the stipulated time. In the absence of proper explanation for delay of 24 days in filing the complaint, the complaint is liable to be dismissed. The Trial Court has justified in coming to a conclusion that there are no grounds to allow the application. He submits that there are no good grounds to allow the present appeal. On these grounds he prayed to dismiss the appeal. 6. I have carefully and cautiously gone through the submissions made by both the learned counsel and perused the records. 7. He submits that there are no good grounds to allow the present appeal. On these grounds he prayed to dismiss the appeal. 6. I have carefully and cautiously gone through the submissions made by both the learned counsel and perused the records. 7. As could be seen from the records, it indicates that the respondent-accused issued a cheque bearing No.831547, drawn on syndicate bank, Bangalore branch dated 05.01.2011 for a sum of Rs.5,00,000/-. Thereafter the accused failed to pay the amount and the complainant presented the said cheque for encashment and it was dishonoured for the reason insufficient balance, at the opening of the day. Thereafter, complainant issued a notice to the accused on 28.01.2011 and on 11.03.2011 the postal authorities have confirmed the delivery of the article on 01.02.2011. As per section 138 of N.I. Act, the cause of action arose after 15 days from 01.02.2011. Admittedly, the accused did not make the payment within 15 days and from that day, within 15 days the complainant ought to have filed a complaint. As per section 138 of the N.I. Act, within one month from the date of cause of action, complaint has to be filed. But it was not filed within one month and it was filed only on 23.07.2011. No doubt as per section 138 of the N.I. Act, if a complaint has been filed after one month, the court can take cognizance of such offence but as per section 142(b) of the N.I. Act, the complaint can be entertained as per the proviso if the complainant satisfies the court that he had a sufficient cause for not making complaint within such period. For the purpose of clarity, I quote Section 142(1) of the N. I. Act, which reads as under. 142. Cognizance of offences.- (1) 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 complaint within such period.] (c) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138] 8. A close reading of the said provision makes it clear that the cognizance on a complaint can be taken by the Court after prescribed period of one month if the complainant satisfies the court that he had a sufficient cause for not making complaint within such period. Though the complainant appellant has filed an application for condonation of delay in filing the complaint stating that he was suffering with jaundice and as such he did not file the complaint within the stipulated period, in his application, he has requested to condone the delay of 104 days in filing the complaint. But as could be seen from the records, the postal authorities have confirmed the delivery of article, which was sent through registered post, on 01.02.2011. It goes to show that the complainant had knowledge about service of notice on 11.03.2011 and within 15 days from that day, no payment has been made and thereafter within 15 days the complaint ought to have been filed. If the delay is calculated from the said date, there is a delay of 128 days in filing the complaint. But the complainant has only explained the delay of 104 days, for remaining 24 days no sufficient explanation has been placed on record to condone the delay. 9. Be that as it may. Even though it is a specific contention of the complainant that he was suffering with jaundice and he was under treatment. But no document is produced to show that he was suffering with jaundice from such and such period and he took treatment from such and such date with the doctor. In the absence of any material, it cannot be held that he was suffering with jaundice and he was sick, and it is sufficient cause for non-filing of complaint. In the absence of any substantial evidence to support the contention, the Trial Court has come to a right conclusion and has rightly dismissed the application as well as the complaint. In the absence of any material, it cannot be held that he was suffering with jaundice and he was sick, and it is sufficient cause for non-filing of complaint. In the absence of any substantial evidence to support the contention, the Trial Court has come to a right conclusion and has rightly dismissed the application as well as the complaint. There are no grounds made out by the appellant to condone the delay. The Trial Court has rightly come to a right conclusion and has dismissed the complaint. 10. I am conscious of the fact that while considering the delay under section 142 of the N.I. Act, if sufficient cause is shown, a lenient view may be taken in considering the application for condonation of delay. But no explanation has been given for 24 days delay. There is no proper explanation for full delayed days. Under such circumstances, the Court cannot take a lenient view and give benefit. In that light also, the contention taken by the learned counsel for the appellant is not acceptable. 11. I have carefully and cautiously gone through the order of the Trial Court. There is neither perversity nor any illegality and the same deserves to be confirmed and accordingly, it is confirmed. 12. The appeal is dismissed being devoid of merits.