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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 = CRIMINAL APPEAL NO. 1684 OF 2014 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 8924 OF 2013 PAWAN KUMAR RALLI … APPELLANT VERSUS MANINDER SINGH NARULA … RESPONDENT = 2014 -Aug. Part- http://judis.nic.in/supremecourt/filename=41820

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 =  

he

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’.

 The  High

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,

Cr.P.C. proceedings.

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

limitation.

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

appropriate orders.

2014 -Aug. Part- http://judis.nic.in/supremecourt/filename=41820

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