Kerala High Court
Abdurehiman vs Sethu Madhavan on 30 August, 2006
Equivalent citations: II(2007)BC688, 2006(4)KARLJ33, AIR 2007 (DOC) 136 (KER.)
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, V. Ramkumar
ORDER K.S. Radhakrishnan, J.
1. This Revision Petition has been placed before us on a reference by Justice R. Basant, after having noticed conflict between the decision of a learned single Judge of this Court in Muraleedharan v. Sreeram Investment Ltd. and Ors. and the decision of another learned Judge of this Court in G.T.C. Industrial Ltd. v. Abdurahimankutty 1993 (1) KLT 290. The learned Judge who decided Muraleedharan's case, supra, while dealing with an application under Section 142 of the Negotiable Instruments Act, 1881 has taken the view that delay in filing a complaint cannot be condoned unless it is supported by an affidavit by the complainant explaining the reasons for the delay.
2. The learned Judge who decided Abdurahimankutty's case, while interpreting the provisions of Section 468 of the Code of Criminal Procedure, took the view that if the delay has been property explained, cognizance can be taken, even without an application for condonation of delay in the interests of justice. The learned Judge while referring the matter felt that an authoritative pronouncement is warranted with regard to the question as to whether a detailed enquiry giving opportunity to the parties to adduce oral evidence is necessary at the stage of taking cognizance to decide whether the delay deserves to be condoned under Section 142 of the Negotiable Instruments Act or whether an adhoc order is to be passed after entertaining the materials available relegating the question to be decided after exhaustive consideration at the final stage.
3. The first respondent herein who is the complainant has stated that he has given a cheque bearing number 33017 dated 27.01.2005 for an amount of Rs. 75,000/- and the same was presented for collection through Punjab National Bank but was dishonoured with the endorsement "funds insufficient". Notice was sent to the accused on 28.02.2005 and the same was received on 2.3.2005. Complainant has stated that due to ill health he could not file the complaint within the statutory period and there was delay of two months and 14 days in filing the complaint. Petition for condonation of delay was preferred along with an affidavit sworn to by him but not attested by an advocate. The reasons for the delay was explained and a medical certificate was also produced. The court below found that there are sufficient grounds for condoning the delay and the application was allowed. Aggrieved by the order, this revision petition has been filed.
4. Shri K.B. Arunkumar, the counsel appearing for the revision petitioner submitted that the court below ought to have dismissed the application for condonation of delay since the petition was not in the proper form and the affidavit was not attested by the advocate. Further it was also submitted that no sufficient cause was shown to condone the delay and the court below ought to have dismissed the application. Sri. T.R. Muraleedharan, the counsel appearing for the respondent-complainant on the other hand contended that under the proviso to Section 142(b) of the Negotiable Instruments Act the court can take cognizance of a complaint after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within the prescribed period. Counsel submitted that there is no necessity of filing an affidavit and in any view it is not a mandatory requirement. Counsel submitted that the court can take note of the situation whether there was sufficient ground to condone the delay in not making the complaint within the period prescribed.
5. We shall deal with the rival contentions urged by the parties. Section 142 of the Negotiable Instruments Act, as amended, is extracted below for easy reference.
142. Cognizance of offences. 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.
(emphasis added) Section 142(a) of the Act states that no court shall take cognizance of any offence punishable under Section 138 except on a complaint, in writing, made by the payee or, as the case maybe, the holder in due course of the cheque. Sub-clause (b) of Section 142 states that such complaint has to be made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. A proviso was added to Section 142 of the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). Before carrying out the amendment to Sections 138 to 142, a working group was constituted to make recommendation as to what changes were needed to effectively achieve the purpose of Section 138. Government taking note of the recommendations and other relevant factors introduced the Negotiable Instruments (Amendment) Rule, 2001 in the Lok Sabha. The Bill was referred to the Standing Committee on Finance which submitted its report to the Lok Sabha in November 2001. It was then decided, inter alia, to bring an amendment to provide a discretion to the court to waive the period of one month which has been prescribed for taking cognizance of the case under the Act. Section 9 of Act 55 of 2002 states that 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. In the statement of objects and reasons of Act 55 of 2002 it has been stated that the existing provisions in the Negotiable Instruments Act, 1881 namely, Sections 138 to 142 in Chapter XVII have been found deficient while dealing with dishonoured cheques. Courts are expected to dispose of such cases as per the procedure contained in the Act though it was noticed that the procedure to deal with such matters is cumbersome. Burden is on the complainant to satisfy the Court that he has sufficient cause for not making the complaint within such period. Once cause of action has arisen, limitation will start to run and the complainant has to satisfy the court that he has sufficient cause for not making the complaint within the period prescribed by the statute. No procedure has, however, been prescribed under the Act about the manner in which such complaint has to be filed. Statute does not say that that complainant should file a separate application supported by an affidavit stating the reasons for not making the complaint within the stipulated period, Nevertheless, he has to satisfy the court that he had sufficient cause for not making the application within the period prescribed.
6. We have already indicated that the learned Judge in Muraleedharan's case, supra, has stated that the delay can be condoned by the court only if an affidavit is filed by the plaintiff explaining the delay. The learned Judge also held that filing of an affidavit is mandatory. The court expressed the view that the best way to explain the reason is to file an affidavit by the complainant himself. We may examine the correctness or otherwise of the reasoning of the learned Judge in Muraleedharan's case, supra, in the light of other allied provisions under the Code of Criminal Procedure as well as Section 5 of the Limitation Act.
7. Section 473 of the Code of Criminal Procedure deals with extension of period of limitation in certain cases. Section 473 is extracted below for easy reference.
473. Extension of period of limitation in certain cases.-- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been property explained or that it is necessary so to do in the interests of justice.
(emphasis added) Section 473 gives ample power to courts to take cognizance of an offence after the expiry of the period of limitation 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. Section 5 of the Limitation Act provides for extension of the period prescribed in certain cases. Section 5 of the Limitation Act is also applicable in criminal cases where the question of condonation of delay arises. Its applicability would however be only in so far as condonation of delay is concerned and there is no other provision of law. Section 5 of the Limitation Act is also extracted for easy reference.
5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
(emphasis added) Scope of Section 5 of the Limitation Act and Section 473 as well as Section 468 of the Code of Criminal Procedure, 1973 came up for consideration before the Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy and Ors. and the court held as follows:
In view of Section 473 a court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly expired, but even in absence of proper explanation if the court is satisfied that it is necessary so to do in the interests of justice. The said Section 473 has a non obstante clause which means that said section has an overriding-effect on Section 468, if the court is satisfied on the facts and in the circumstances of a particular case, that either the delay has been properly explained or that it is necessary to do so in the interests of justice.
At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the court that there was sufficient cause for condonation of delay under Section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of the delay, whereas Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is applicable, the court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim: vigilantibus, ei non, dormientibus, jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty against women.
We may in this connection refer to the decision of a learned Judge of the Calcutta High Court in Ashutosh Chowdhury v. State and Anr. 1996 Crl.L.J. 2231 where the court has taken the view that independent of an application by the prosecution under Section 473, the Court can take cognizance in appropriate cases ignoring the bar under Section 468 of the Code and the Magistrate can exercise the power under Section 473 of the Code independent of an application. While dealing with Section 473 of the Code, a Division Bench of the Andhra Pradesh High Court in K. Hanumantha Rao v. Narasimha Rao and Ors. 1982 Crl.L.J. 1734 has also taken the view that the delay can be explained to the satisfaction of the court without a formal application. The Gujarat High Court in Sureshbhai K. Desai v. State of Gujarat 1983 Crl. LJ. 1684 also took the view that while invoking Section 473 of the Code it is not necessary to give an application containing the grounds in advance so that the accused should prepare his defence but there should be facts and circumstances on which the court should be satisfied to condone the delay before exercising the jurisdiction under Section 473. A learned single Judge of this Court in Vijayan v. State of Kerala while interpreting Section 142 and 138 of the Negotiable Instruments Act however took the view that it would not be proper to deny opportunity to accused to defend the case on the ground of delay which would be available to him.
8. We are of the view that while entertaining an application for condonation of delay under Section 142 there is no requirement that the complainant should file an affidavit in support of the petition for condonation of delay; nor is he obliged to file an application. Sufficient cause however be shown in the complaint itself or in the application for condonation of delay or in the affidavit, if any, or in other materials which would be sufficient to satisfy the court that the complainant had sufficient cause for not filing the complaint within the specified period. Procedural provision as held by the apex court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh should not be allowed to defeat substantive rights or to cause injustice. The court held as follows:
Non-compliance with any procedural requirement elating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
9. Court has been conferred with the discretion to waive the period of one month prescribed for taking cognizance. When a court is invested with discretionary power it has to make a choice between alternative courses of action and act according to the rules of reason and justice. But as opined by the learned Judge in Vijayan's case, supra if there is delay in filing a complaint before reaching satisfaction by the court the court should give notice to the respondent and after hearing the respondent the court should satisfy itself as to whether the complainant had sufficient cause for not making the complaint within the specified period. In our view, a detailed enquiry giving opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide whether delay deserves to be condoned under Section 142 of the Act. Court can exercise its discretion at its initial stage and decide whether the delay has to be condoned or not. However, in the light of the ratio in State of Maharashtra v. Sharadchandra Vinayak Dongre the court will have to give an opportunity of being heard to the accused before condoning the delay. In the above mentioned circumstances, we find it unable to accept the reasoning given in Muraleedharan's case. The direction given by the learned Judge in Muraleedharan's case that delay can be condoned only on the strength of an affidavit filed by the complainant himself cannot be sustained.
10. We therefore overrule the decision in Muraleedharan's case and hold that in the absence of any specified procedure laid down under the Act the complainant need only satisfy the court that he had sufficient cause for not making the complaint within the prescribed period and the court can take note of all the aspects of the matter for reaching the satisfaction that the complainant had sufficient cause for not making the complaint within the period prescribed. In appropriate cases, it is always open to the court to insist on filing of an affidavit depending upon the facts and circumstances of each case. We are satisfied on facts that the trial court has rightly held that there are sufficient grounds to condone the delay of two months and 14 days in making the complaint. Revision petition therefore lacks merits and the same is dismissed. Reference is answered accordingly.