Delhi District Court
Sh. Sunil Mittal S/O Sh. K.C. Mittal vs The State on 4 January, 2007
1
IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Cr.(R) No. 99/06
Sh. Sunil Mittal S/o Sh. K.C. Mittal,
R/o Flat No. H101D/GH, Anjara Enclave,
Chander Nagar, Ghaziabad, U.P. .....Petitioner.
Vs.
1. The State.
2. Sh. Sanjeev Kumar R/o C59, Top Floor,
Vivek Vihar, Delhi. .....Respondents.
O R D E R : Cheque bearing No. 954182, drawn on Surya Nagar branch of Bank of Baroda, Ghaziabad, U.P., for a sum of Rs.3,00,000/, was issued by the petitioner in favour of Sanjeev Kumar to discharge his liability towards sale proceeds of shares, which cheque was dishonoured by the bankers for want of sufficient funds in the accounts of petitioner. A legal notice dated 20.10.05 was sent and on 20.12.05 a complaint was filed against the petitioner for his prosecution for an offence punishable under section 138 of the Negotiable Instruments Act. An application under section 5 of the Limitation Act, 1963 (in short the Act) was moved for condonation of delay of 15 days in filing the said complaint, which application was granted by the Trial Court, vide order dated 10.01.06. The petitioner assails the order, pleading that Trial Court has gone wrong, when application under section 5 of of the Act was granted. It has been claimed that order impugned is based on conjunctures and surmises and it did not disclose any ground to condone delay. Petitioner claims that false and fabricated documents 2 were moved in support of the application under section 5 of the Act. According to him, the order impugned nowhere stands on standards of legality and correctness. He claims that his petition may be granted and he may be discharged from the case.
2. Arguments on the petition are heard at the bar. Sh. J.M. Mittal, Advocate, had advanced arguments on behalf of the petitioner. Sh. Jitender Kumar Sahu, Advocate, had raised his submissions on behalf of the respondent. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My observations on the issues involved in the controversy are as follows :
3. On perusal of record, it came to light that cheque bearing No. 954182 dated 03.10.05, drawn on Surya Nagar Branch of Bank of Baroda, Ghaziabad, U.P., was issued in favour of Sanjeev Kumar by the petitioner for a sum of Rs. Three lacs. On presentation, cheque was dishonoured by the bankers, since there were no sufficient funds in the account of petitioner, which fact was communicated to the respondent on 06.10.05. Legal notice dated 20.10.05 was served upon the petitioner, wherein respondent claimed that petitioner was informed on telephone on 07.10.04 about dishonour of cheque, but he turned deaf ear. Said legal notice was not all answered by the petitioner. Now before me, petitioner claims that cheque in question was stolen by the respondent. No facts were placed before me to substantiate contentions advanced by the petitioner. Consequently, it is evident that presumption as contemplated by section 139 of the 3 Negotiable Instruments Act is available to the respondent. Petitioner is to be called upon to rebut that presumption during the course of trial.
4. Thrust of contentions of the petitioner is that limitation to file the complaint has run down and the Trial Court was not justified to enlarge the period of limitation. Respondent presents that Sh. Sunil Raina, his brotherinlaw (Jija), was hospitalized, since he was suffering from right ureteric stricture with alydronephrosis, for which illness he was operated upon. He asserts that on that account he could not file the complaint within stipulated period and application under section 5 of the Act was moved, which was rightly granted by the Trial Court. According to the petitioner, Trial Court has gone wrong, since there were no sufficient grounds for enlarging the period of limitation.
5. Section 5 of the Act empowers the Court to admit a complaint after expiry of prescribed period, if it is satisfied that there was sufficient cause for not filing it within the period prescribed. It is incumbent upon the Court to exercise its discretion under section 5 of the Act with reference to special circumstances of each case. When time for filing the complaint has passed, a very valuable right is secured to the opponent and the Court, therefore, must be fully satisfied of the justice of the grounds on which the applicant seeks to obtain extention of time in prosecuting the opponent. If justice requires, the Court should enlarge the period of limitation for filing the complaint. Here in the case, petitioner had not responded the legal 4 notice served upon him. Facts of the present controversy are suggestive that presumption as contemplated by section 139 of the Negotiable Instruments Act is available to the respondent. In such a situation, in case application under section 5 of the Act is declined, petitioner gets enriched to the tune of Rs. Three lacs, despite the factum of presumption available available against him. Brotherinlaw of the respondent was hospitalized, which fact constrained his mind and on that account, he could not file the complaint within the period of limitation. Therefore, it is evident that Trial Court was justified in enlarging the period of limitation, since sufficient cause was shown by the respondent for it. Illness of a near relative is sufficient cause, which fact was placed before the Trial Court through medical record. Therefore, I am constrained to opine that Trial Court has rightly exercised its discretion available under section 5 of the Act. No illegality or incorrectness is there in the order impugned. I do not find any ground to grant the petition. Petition is, therefore, dismissed. Trial Court be intimated accordingly. File be consigned to Record Room.
Announced in the Open Court On this 4th day of January,2007.
(Dr. R.K. Yadav) Additional Sessions Judge :
Karkardooma Courts, Delhi.