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2023 DIGILAW 187 (ALL)

Sunita Agarwal v. State of U. P.

2023-01-18

SAUMITRA DAYAL SINGH

body2023
JUDGMENT Saumitra Dayal Singh, J. Heard Shri Ashish Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State. 2. Challenge has been raised to the order dated 13.12.2021 passed by the Civil Judge (Junior Division), Fast Track Court, Judicial Magistrate, Ghaziabad in Complaint Case No. 1690 of 2021 (Ashwani Bhatnagar v. Sunita Agarwal), filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). Undisputedly, the above criminal complaint was filed with delay. The cheque in question was dishonoured on 13.06.2018. It was returned with the dishonour memo on 28.06.2018. Legal notice was first issued to the Opposite party no. 2 on 26.07.2018 where after criminal complaint was lodged on 27.10.2018. As to the delay in lodging the complaint, the learned court below has condoned the delay and thereafter taken cognizance on the complaint and summoned the present applicant. 3. In such fact, a preliminary objection has been raised to the cognizance taken. According to the learned counsel for the applicant, notice ought to have been served on the applicant to allow him to object to the delay before the same may have condoned and cognizance taken. He has relied on three decisions. First, he has relied on a decision of the Tripura High Court in Sumit Deb v. Joy Deb and Anr. (CRL. A. No. 09 of 2020), decided on 30.05.2022. Further, reliance has been placed on a decision of the Supreme Court in State of Maharashtra v. Sharadchandra Vinayak Dongre and Ors., (1995) 1 SCC 42 and a decision of the Andhra Pradesh High Court in D. Shyam Sunder v. Nella Prabhu Lingamurthy and Anr., (2010) 1 ALD (Cri) 431. 4. On the other hand, learned A.G.A. would submit, the learned court below was fully empowered to condone the delay. Insofar as the satisfaction to condone the delay was recorded in a separate order dated 16.9.2021, there is no defect in the decision. He has relied on the decision of the Supreme Court in Birendra Prasad Sah v. State of Bihar and Others, AIR 2019 SC 2496 and a decision of coordinate bench of this Court in Ranjeet Kumar Verma v. State of U.P. and another Application under Section 482 No. 30326 of 2022. 5. He has relied on the decision of the Supreme Court in Birendra Prasad Sah v. State of Bihar and Others, AIR 2019 SC 2496 and a decision of coordinate bench of this Court in Ranjeet Kumar Verma v. State of U.P. and another Application under Section 482 No. 30326 of 2022. 5. Having heard learned counsel for the parties and having perused the record, in the first place, as a fact it cannot be disputed that the complaint was lodged by the opposite party carrying a delay. Second,in view of the specific provision of Section 142 (1) (b) read with the proviso thereto, the learned court below was vested with the power to condone the delay in lodging such complaint. 6. As to the procedure to be followed for condoning the delay, the Act is silent. Thus, the Act does not prescribe, before condoning the delay the accused person must be put to notice and the objection to the condonation of delay sought must be considered before delay is condoned and the complaint registered. 7. Third, though section 142 of the Act and other attending provisions open with the non obstante clause, at the same time, there is nothing in the language of the Act as may suggest that it seeks to over-ride the provisions of the Cr.P.C. 1973 (hereinafter referred to as 'the Code') with respect to the procedure prescribed thereunder for the purpose of delay in entertaining and dealing with criminal" cases. Undisputedly, the prosecution lodged against the applicant is in conformance with the procedure prescribed under the Code to entertain a criminal complaint. 8. Then Section 473 of the Code reads as below:- "473. Extension of period of limitation in certain cases. - Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice." 9. It is in light of that provision that the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre and others (supra) observed as under:- "5. It is in light of that provision that the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre and others (supra) observed as under:- "5. In our view, High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge-sheet" on the basis of an " incomplete charge-sheet" and quashed the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous." 10. Then in paragraph 9 of the said. It was for reasoned as under:- "Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties. It is after the decisions of the application for condonation of delay that the Chief Judicial Magistrate shall proceed further in the matter. The finding of the High Court that the CJM could not take cognizance of the offence on the basis of incomplete police report, for the reasons already recorded, is, however, set aside. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said herein above, shall, however, be construed as any expression of opinion on the merits of the case." 11. The Chief Judicial Magistrate shall proceed further in accordance with law after deciding the application seeking condonation of delay. Nothing said herein above, shall, however, be construed as any expression of opinion on the merits of the case." 11. Similar view has been taken by the Tripura High Court and the Andhra Pradesh High Court in Shri Sumit Deb (supra) and D. Shyam Sunder (supra). 12. Once in light of the provisions of the Code, it has been held by the Supreme Court that the notice ought to have been issued to the accused persons before delay had been condoned and no different reason may ever exist with respect to the criminal complaint lodged alleging offence under the Act. Unless a different procedure was prescribed for the purposes of entertaining and proceeding with complaints under the Act, no such reasoning may ever arise. 13. In view of the above settled position in law, no useful purpose would be served in keeping the present application pending any further or calling for a counter affidavit, at this stage. To entertain the present petition on the plea raised and keep the same pending awaiting counter affidavit would only cause delays. Accordingly, the order is set aside and the matter remitted to the learned court below to pass a fresh and reasoned order in light of the observation made hereinabove. The applicant before the Court undertakes to not cause any delay and to appear and file objection to the delay condonation sought within a period of three weeks from today. Till delay condonation matter is pending the applicant may appear through counsel. 14. This exception has been made to the requirement of issuance of notice in the present proceedings as the applicant is already in the know of the proceedings and the documents necessary for filing objection are available with him. 15. With the aforesaid observation, the present application is allowed.