Delhi District Court
Manish Kumar vs S. K. Verma on 14 December, 2020
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IN THE COURT OF MS. NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-EAST DISTRCT: SAKET COURTS: NEW DELHI
C.R. No.9/2020
1. Manish Kumar
Having address at :
141, Second Floor,
Navyug Market, Ghaziabad, UP
2. Raj Kumar
Having address at :
141, Second Floor,
Navyug Market, Ghaziabad, UP
3. Lancer Healthcare Pvt. Ltd.
Having address at :
141, Second Floor,
Navyug Market, Ghaziabad, UP
..... Revisionists /Accused
Versus
S. K. Verma, Proprietor
M/s. Aarti Enterprises
C-150, Vikaspuri,
New Delhi - 110018.
..... Respondent/Complainant
CR No.09/2020
Manish Kumar & Ors. Vs. S.K. Verma Page 1 of 7
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CRIMINAL REVISION PETITION U/S.397 CR.P.C. AGAINST
THE ORDERS DATED 27.11.2017 AND 06.02.2018
PASSED BY LD. MM
Date of Institution: 07.01.2020
Date of Decision: 14.12.2020
ORDER
1. Revision petition under Section 397 Cr.PC has been filed against the orders dated 27.11.2017 and 06.02.2018 vide which the delay in filing of the complaint has been deemed to be condoned.
2. Facts in brief, are that a complaint under section 138 NI Act was filed by the respondent/complainant in respect of cheque dated 07.04.2014 for Rs.1.20 Crores which on presentation was dishonoured for the reason "Exceeds Arrangement" and "Payment Stopped by Drawer". The complaint was filed on 29.08.2014 and was accompanied by an application for condonation of delay. Learned MM on 09.01.2015 recorded the statement of AR of the complaint and exhibited the documents but there was no reference to the condonation of delay application. The matter was adjourned for the next date for remaining complainant's evidence. Thereafter, the matter was adjourned for various dates. On 27.11.2017, no substantive order was made except the matter was listed for clarification on the next date i.e. 09.01.2018. Eventually, on 06.02.2018, learned MM directed to summon the accused for CR No.09/2020 Manish Kumar & Ors. Vs. S.K. Verma Page 2 of 7 :: 3 ::
13.03.2018 and observed as under :
"There is no order on the application for condonation of delay, but since the Ld. Predecessor took cognizance, I have to deem that the delay was condoned."
3. Accordingly, summons were directed to be issued against revisionist no.1. Aggrieved by the said order, the present revision petition has been filed.
4. The short point agitated in the revision petition is that the order of learned MM taking cognizance and condoning the delay in filing of the complaint is illegal and bad in law. The matter was pending at the stage of recording of remaining complainant's evidence but ignoring that, vide impugned order the cognizance is deemed to have been taken and the condonation of delay application is deemed to be allowed. Learned Trial Court has failed to consider that when a complaint is filed beyond the timeline then the accused acquires a valuable right and before allowing such application, the notice has to be issued to the accused. The valuable right of audi alteram partem which is the basic principle of natural justice has been violated. The condonation of delay could not have been deemed to be allowed without an order and without notice to the accused and hence, the impugned order is liable to be set aside.
5. The respondent was duly served and submissions were made by Ld. CR No.09/2020 Manish Kumar & Ors. Vs. S.K. Verma Page 3 of 7 :: 4 ::
Counsel for the respondent though no formal reply was filed.
6. I have heard learned counsel for both the sides and have perused the record. My observations are as under :
The short point for consideration is whether there can be a deemed cognizance and deemed condonation of delay. Section 473 Cr.PC provides for extension of period of limitation on being satisfied on the facts and in the circumstances of the case whether the delay has been explained or it is necessary to condone the delay in the interest of justice. The importance of this Section was noted in Arun Vyas & Anr. Vs. Anita Vyas, AIR 1999 SC 2071, wherein the Apex court observed that the court may take cognizance of the offence after the expiry of the period of limitation in the interest of justice to avoid miscarriage of justice. The court is thus, vested with the jurisdiction to condone the delay. The factors that may be considered while condoning the delay were laid down by Hon'ble Supreme Court in Vanka Radhamanohari Vs. Vanka Venkata Reddy, 1993 (30 SCC 4. It was observed that section 473 Cr.PC enjoins a duty on the Court to examine not only whether the delay has been explained but also as to whether it is necessary for the circumstances and in the interest of justice to condone the delay. For this purpose, the notice may be taken of nature of offence, the class of which the applicant belongs including his background.
7. While Section empowers the court to condone the delay on due CR No.09/2020 Manish Kumar & Ors. Vs. S.K. Verma Page 4 of 7 :: 5 ::
consideration of circumstances but the other aspect is what is the procedure to be followed while deciding the condonation application having regard to the fact that a valuable right accrues on the accused whenever a complaint becomes barred by limitation.
8. In State of Maharashtra Vs. Sharadchandra Vinayak Dongre, 1995 AIR 231, Hon'ble Supreme Court in reference to section 473 Cr.PC observed that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. Unless the delay is condoned, the cognizance of the offence cannot be taken.
9. In Prashant Goel Vs. State and Anr., 2008 (1) KLJ 904, decided by Hon'ble Delhi High Court, the question arose in regard to the condonation of delay in a complaint case under section 138 NI Act. A reference was made to the judgment of Sharadchandra Vinayak Dongre's case (supra) and It was observed that under section 138 NI Act, there was no provision for condonation of delay in filing the complaint. This power of condonation has been conferred by Amendment Act, 2002. The Magistrate is now entrusted with the power to condone the delay on showing sufficient cause as per proviso to S.142 (1) (b) of the Act. Therefore, when the complaint is filed which is time-barred and is accompanied with an application for condonation of delay, appropriate procedure would be to first issue notice of the CR No.09/2020 Manish Kumar & Ors. Vs. S.K. Verma Page 5 of 7 :: 6 ::
application to the other side without taking cognizance of the complaint. After hearing both the parties, if the court comes to the conclusion that there is no ground to condone the delay, the application may be dismissed which will entail dismissal of the complaint being barred by limitation. On the other hand, if the court for sufficient reasons condones the delay then it would have the effect of the complaint being filed and learned MM shall proceed with the complaint in accordance with the procedure as contained under 200 Code of Criminal Procedure. Whichever way application for condonation of delay may be decided, it is mandatory to issue a notice to the other side before considering the application.
10. In the present case, as narrated above, on 09.01.2015, statement of AR of the complainant was recorded but the matter was adjourned for recording further complainant's evidence. However, before proceeding with the complaint the condonation application was required to be decided on defined parameters after giving due notice of the application to the accused person(s). Unless the application is decided on merits the question of taking cognizance does not arise. There cannot be any deemed cognizance or condonation of delay as it involves valuable rights of the parties and has to be expressly decided after giving an opportunity of being heard to both the parties. Thus, the impugned order dated 06.02.2018 suffers from illegality and is hereby set aside. The revision petition is allowed.
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11. Parties are directed o appear before the learned MM on 17.12.2020 who may consider the condonation application after hearing both the parties and proceed as per law.
12. A copy of the order along with trial court record be sent to the learned trial court.
13. Revision file be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.12.16
KRISHNA 12:54:39 +0530
Announced in the open court (Neena Bansal Krishna)
today i.e. 14.12.2020 Principal District & Sessions Judge
South-East District,
Saket Courts, New Delhi.
CR No.09/2020
Manish Kumar & Ors. Vs. S.K. Verma Page 7 of 7