Sec.138 and sec.142 (b) of N.I.Act- Delay of 25 days in filing complaint after issuing a hand note – High court quashed the complaint as barred by limitation – Apex court held that since there is no opportunity for explaining delay as the complaint strongly believed that he filed complaint from statutory notice and since the accused not raised this plea during the trial of case and for the fist time raised before High court for quashing, the apex court granted time to file a separate application for condone the delay in the special circumstances of the case but not as precedent authorizing every one from not filing delay condone application =
had given a loan of Rs.60 lakhs to the respondent in the month of November,
2011. In discharge of his obligation to the appellant, on 25th April, 2012,
the respondent issued (i) Cheque No. 889953, drawn on Allahabad Bank, for
Rs.30 lakhs; (ii) Cheque No. 545420, drawn on ICICI Bank, for Rs.20 lakhs;
and (iii) Cheque No. 545409, drawn on ICICI Bank, for Rs. 10 lakhs. When
the appellant presented the said cheques in his Bank for realization, they
were dishonoured by the respondent’s banker with remarks ‘Stop Payment’.
Court expressed the view that the complaint was not filed within a period
of one month after the expiry of 15 days of receipt of the notice dated
27th April, 2012 and hence it was barred by limitation under Section 142(b)
of the Act and by the impugned judgment quashed the criminal proceedings
against the respondent.
(a) Whether the handwritten note sent by the appellant on 27th April,
2012 to the respondent could be treated as ‘notice’ or the notice issued by
the advocate on 24th May, 2012 could only be treated as ‘notice’ within the
meaning of Section 138 of the Act?
(b) If there was any delay in filing the Complaint in the present case,
whether such delay could have been condoned by the High Court in accordance
with the provisions of the Act?
(c) Whether the High Court was right in quashing the criminal proceedings
on the ground of limitation or instead of quashing the criminal proceedings
it ought to have remitted the matter back to the Trial Court for deciding
the issue of limitation?
It appears that
the respondent contested the matter before the Trial Court and also filed
an application under Section 91, Cr.P.C. warranting the appellant to
produce various documents. He has also moved an application under Section
410, Cr.P.C. seeking transfer of the Complaint to a different Court. It is
noteworthy that all through out the pendency of proceedings before the
Trial Court, the respondent did not raise the issue of ‘limitation’. The
issue was raised for the first time before the High Court in Section 482,
Apex court held that
Thus, in our opinion, the handwritten
note dated 27th April, 2012 fulfilled the mandatory requirements under
clause (b) of proviso to Section 138 and could be said to be a valid
‘notice’ in the light of this Court’s Judgment in Central Bank of India &
Anr. (supra). Moreover, this document (Annexure P4) stands admitted by the
appellant in his cross examination also. Therefore, in our opinion, the
High Court has committed no error in considering the handwritten note dated
27th April, 2012 as ‘notice’ under Section 138 of the Act.
In view of the settled principles of law in Rakesh Kumar Jain, MSR
Leathers. Subodh S. Salaskar (supra) and in the peculiar facts and
circumstances of the case, we are of the considered opinion that the High
Court was not right in quashing the complaint merely on the ground that
complaint is barred by limitation, that too a plea which was taken for the
first time before the High Court. On the other hand, the High Court ought
to have remanded the matter to the Trial Court for deciding the issue of
24. At the same time, we want to make it very clear that by this
observation we are not laying down a legal proposition that without even
filing an application seeking condonation of delay at an initial stage,
complainant can be given opportunity at any stage of the proceeding. As
already discussed by us in the foregoing paragraphs, we have come to the
irresistible conclusion, to afford an opportunity for the complainant to
move an application seeking condonation of delay, under the peculiar facts
and circumstances of the case.
25. For all the aforesaid reasons, in order to meet the ends of justice,
we exercise our discretion under Article 142 of the Constitution and set
aside the impugned judgment of the High Court quashing the criminal
proceedings and restore the criminal proceedings before the Trial Court.
The appellant is permitted to file an application for condonation of delay
before the Trial Court and if such an application is filed, the Trial Court
shall be at liberty to consider the same on its own merits, without being
impressed upon by any of the observations by this Court, and pass
2014 -Aug. Part- http://judis.nic.in/supremecourt/filename=41820