Karnataka High Court
Mr. P.S. Aithala vs Mr. Ganapathy N. Hegde on 17 December, 2007
Equivalent citations: 2008CRILJ1545, ILR2008KAR440, AIR 2008 (NOC) 1295 (KAR.) = 2008 (2) AIR KAR R 282, 2008 CRI. L. J. 1545, 2008 (3) ALJ (NOC) 612 (KAR.) = 2008 CRI. L. J. 1545, 2008 (2) AIR KANT HCR 282, 2008 ALL MR(CRI) 141 JS, (2008) ILR (KANT) 440, (2008) 4 CIVILCOURTC 130, (2008) 3 ICC 720, (2008) 2 ALLCRILR 841, (2008) 2 NIJ 436, (2008) 4 KANT LJ 245, (2008) 3 BANKCAS 646, 2008 (2) ANDHLT(CRI) 302 KAR
JUDGMENT H.V.G. Ramesh, J.
1. These appeals have been taken up together for disposal since they ire arising out of common judgment passed by the XXII Addl. C.M.M., & XXIV Addl. Small Causes Judge, Bangalore city in C.C. Nos. 1842/03 to 18429/03 by order dated 21-12-05.
2. The appellant had filed four separate cases against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act for the dishonour of cheques issued by the respondent drawn on Canara Bank, Mahalakshmi Layout Branch, Bangalore. According to the complainant, he issued a legal notice dated 12-8-03 by RPAD as well as under Certificate of Posting on 13-8-03 and despite service there is non-compliance by the respondent to pay the amount, as such, the complaint came to be filed. Along with the complaint, an application under Section 5 of the Indian Limitation Act R/w Section 142(b) of the N.I. Act was also filed for condonation of delay of 13 days in filing the complaint. The learned Magistrate, after enquiry, has taken up the matter for final disposal and while answering the first issue as to whether the complaint/petition is barred by time, holding that petition is time barred, dismissed the complaint. Hence, these four appeals.
3. Heard the learned Counsel for the appellant and the learned Counsel representing the respondent.
It is the submission of the learned Counsel for the appellant that these complaints have been filed subsequent to the amendment to Section 142 of N.I. Act. The said proviso provides for, if the complainant satisfies the Court that he had a sufficient cause for not filing the complaint within the specified period of cognizance of the complaint may be taken. Further, he relied upon the judgment of the Orissa High Court rendered in Crl. Misc. No. 673/1992 and submitted that in the absence of any specific provision barring the application filed under Section 5 of the Limitation Act, the application is maintainable. It is also further contended that nothing has been brought out on record by way of cross-examination when the complainant had been examined regarding the delay. The learned Magistrate ought to have taken into consideration the grounds raised by the complainant regarding the sickness of his mother and other difficulties and without considering the same and without even considering the matter on merits, has dismissed the application as well as the main matter, which is erroneous. It is further submitted that although there is an endorsement of the postal authorities regarding the service of notice and although there is a delay of only three days, on safer side the contention was taken that there is a 13 days delay and sought for condoning the same. The learned Magistrate without assigning valid reasons has rejected the said application and as well as the affidavit filed by him despite the fact that there is no proper objection by the respondent. Accordingly, sought for to allow the appeal.
4. Per-contra, the learned Counsel appearing for the respondent/accused has submitted that it is the specific case of the complainant that there is a delay of 13 days and subsequently he has taken another defense that there is a delay of only 3 days and to cover up the said delay he has taken the shelter of the General Clauses Act. The learned Magistrate taking note of the fact that there is a delay has rightly rejected the complaint. It is further contended that even when the accused has approached this Court, this Court in the criminal petition Nos. 654/05 to 657/05 observing that these matters cannot be decided by looking to the documents in a petition under Section 482 of Cr.P.C., has directed the respondent herein to approach the trial Court, as such, the application was taken belatedly along with the main matter. Hence, there is no illegality in dismissing the petitions based on limitation. In support of his argument, he relied upon the decision in the case of A. Bhoosanrao v. Purushothamdas Pantani and Anr. 1998 Crl.L.J. 906.
5. In the light of the arguments advanced, let me consider whether the trial Court has committed any error or illegality or perversity in the impugned order passed, which requires interference?
6. While answering point No. 1, the trial Court has observed that the High Court has not totally rejected the criminal petitions preferred by the accused and that it has kept open the issue of limitation with certain observation in the body of its order. The trial Court has also noted that the complainant under the apprehension of limitation aspect would have filed O.S. No. 17343/05 against the accused. Further noting that the complainant has not produced the medical certificate regarding the ill-health of his mother and also noting that it is difficult to accept the submission of the Counsel for the complainant that the date of computation of time shall be from 27-8-03 for limitation purpose, stating that there is no corroboration or a supporting affidavit, has proceeded to dismiss the petitions.
7. In the instant case, the first contention taken by the appellant is that there is a delay of 13 days in filing the complaint from the date of postal endorsement i.e., on 20-8-03, but, however, subsequently, referring to the postal seal affixed dated 27-7-03, the complainant had taken a contention that if the computation is from 27-8-03 for limitation purpose there would be hardly two days delay and if the General Clauses Act is applied the said two days falls on second Saturday and Sunday and as such the complaint filed on 13-10-03 on the next working day is very much maintainable. Despite the fact that there is a delay of two days or 13 days, the trial Court ought to have considered the affidavit filed by the complainant. What is being stated by the trial Court is that except his own statement in the affidavit there is no corroborating or supporting affidavit and also that the complainant has not examined the postal authorities and accordingly, it has disbelieved the version of the complainant.
8. A specific provision has been inserted during 2002 under Section 142 of N.I. Act which enables the Court to exercise its discretion and to entertain the complaint by condoning the delay and take cognizance of the offence. The explanation of the complainant is that he had been to his native place and also that his mother was sick. Even assuming that there is 13 days delay in filing the complaint whether such a delay was with a view to harass the accused or with any other deliberate cause has not been considered by the trial Court. Only on the technical ground stating that the delay has not been satisfactorily explained, it has rejected the petitions. Although the application for limitation was considered at the time of final disposal but the matter was not considered on merits on the ground that the complaint itself is not maintainable. When a huge amount is involved and also contentions are raised by the respondent that there is a material alteration, it is the matter of appreciation of evidence by the trial Court at the time of disposal of the matter on merits arid the very delay of 13 days would not be of much consequence. In the ratio laid down by the Orissa High Court in the judgment reported in 1993 Crimes 3485, the Orissa High Court in the similar situation referring to the decision of the Apex Court was of the view that the application under Section 5 of the Limitation Act can be maintained. When there is hardly 13 days delay and by a supporting affidavit the complainant had filed such an application, the trial Court ought to have taken reasonable view in the matter in condoning the delay. Despite the fact that due to some exigencies the complainant could not file the complaint in time, when a specific proviso is provided under Section 142(b) of the N.I. Act to condone the delay, the said delay could be condoned in the interest of justice having regard to the nature of transaction and the amount involved and also having regard to the difficulties expressed. The filing of the civil case by itself will not take away the right accrued to the complainant when it is otherwise could be considered. The decision relied upon by the learned Counsel for the respondent reported in 1998 Crl.L.J. 906 referred to above, is of no help to him at this stage and he can very well cite this judgment at the time of consideration of the matter on merits.
9. For the foregoing reasons, appeals are allowed. The delay in preferring the complaints is condoned. The matter is remanded back to the trial Court to dispose of the same in accordance with law.