Rajasthan High Court - Jaipur
Mahadev Gurjar vs State Of Rajasthan And Anr on 6 August, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6125/2016
Mahadev Gurjar Son Of Shri Luxminarayan Gurjar, By Caste
Gurjar, aged 46 years, R/o Village Bheempura Tehsil Phagi,
District Jaipur, Police Station Sez Raj.
----Petitioner
Versus
1. State Of Rajasthan Through P.P.
2. Jagdish Prasad Khatik Son of Late Shri Chhitarmal Khatik,
By Caste Khatik, R/o Ward No. 9, Khatiko Ka Mohalla,
Near Jhaag Bus Stand, Bagru, District Jaipur Police
Station Bagru.
----Respondents
Connected With S.B. Criminal Miscellaneous (Petition) No. 6124/2016 Mahadev Gurjar Son Of Shri Luxminarayan Gurjar, By Caste Gurjar, R/o Village Bheempura, Tehsil Phagi, District Jaipur, Police Station Sez Raj.
----Petitioner Versus
1. State Of Rajasthan Through P.p.
2. Jagdish Prasad Khatik Son of Late Shri Chhitarmal Khatik, By Caste Khatik, R/o Ward No.9, Khatiko Ka Mohalla, Near Jhaag Bus Stand, Bagru, District Jaipur Police Station Bagru.
----Respondents For Petitioner(s) : Mr. Mohamned Anees For Respondent(s) : Mr. Arvind Bhadu, PP Mr. Parth Sarthi Sandu HON'BLE MR. JUSTICE PANKAJ BHANDARI Order 06/08/2019 (Downloaded on 29/08/2019 at 10:41:11 PM) (2 of 4) [CRLMP-6125/2016] Petitioner has preferred this miscellaneous petition aggrieved by order dated 26.10.2016 passed by Additional Sessions Judge No. 15, Jaipur Metropolitan, whereby revision petition filed by petitioner was dismissed and the order dated 23.06.2014 passed by Special Metropolitan Magistrate Negotiable Instruments Act Case No. 17 whereby court had condoned the delay in filing the complaint and had taken cognizance, was affirmed.
It is contended by counsel for the complainant that in a case where the court condones delay, it has to give opportunity to accused. He placed reliance on State of Maharashtra v. Sharadchandra Vinayak Dongre (1995) 1 SCC 42 and Gautam Kumar De and Anr. v. M/s Prime Movers Auto Associates
(p) Ltd. & Anr. 2009 (3) Crimes 524 (Cal.).
Counsel for the complainant has opposed the miscellaneous petition. It is contended that there was a delay of seven days on account of demise of brother of complainant. It is also contended that petitioner has availed the remedy of revision and there being bar under Sub section (3) of Section 397 of Cr.P.C. on filing second revision by the same person misc. petition cannot not be entertained.
I have considered the contentions and have perused the provisions pertaining to condonation of delay in filing a complaint. Sub Clause (b) of Section 142 of the Negotiable Instruments Act, reads as under:-
Such complaint is made within one month of the date on which the cause of action arises under Clause (c) of proviso of Section 138:(Downloaded on 29/08/2019 at 10:41:11 PM)
(3 of 4) [CRLMP-6125/2016] 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.
Sub Clause (1) of Section 142 of the Negotiable Instruments Act, reads as under :-
Notwithstanding anything contained in the Code of Criminal Procedure,1973.
Section 142, begins with a non-obstanate clause meaning thereby that Cr.P.C. would not be applicable in a matter pertaining to condonation of the delay in filing of the complaint. Judgment of the Apex Court in State of Maharashtra v. Sharadchandra Vinayak Dongre (supra), on facts do not have applicability to the present case. However, Gautam Kumar De and Anr. v. M/s Prime Movers Auto Associates (p) Ltd. & Anr. (supra), was a case under the Negotiable Instruments Act and the court observed that when the court is extending the time it means, it is interfering with the rights of the accused which have vested with him by virtue of expiry of period of limitation. Therefore, even though there is no rule requiring the court to issue notices to the proposed accused and to give him an opportunity in regard to the extension of time interest of justice and principles of natural justice require that the condonation of delay and extension of time can be done only after giving reasonable opportunity to the proposed accused. I beg to differ as proceedings under the Negotiable Instruments Act cannot be equated with the proceedings under the Penal Code and when the act specifically bars the applicability of Code of Criminal Procedure with regard to the provision pertaining to condonation of delay, the provision of Cr.P.C. cannot be looked into by the (Downloaded on 29/08/2019 at 10:41:11 PM) (4 of 4) [CRLMP-6125/2016] court. Proceedings under the Negotiable Instruments Act are quasi criminal in nature and the amendment by which courts have been empowered to take cognizance after the prescribed period has been inserted with effect from 06.02.2003 Calcutta High Court has not dealt with the provisions of Section 142 of the Negotiable Instruments Act and was swayed by the decisions of courts passed with regard to condonation of delay.Taking into account the provisions of Cr.P.C.
This court is of the considered view that under the Negotiable Instruments Act at the stage of taking of cognizance it is not necessary for the court to issue notices to the accused and hear the accused before condoning the delay in filing the complaint.
Petitioner has already availed the remedy of revision, present is not a case of exceptional nature so as to invoke the inherent powers. No ground is made out for entertaining the present Criminal Misc. petitions. The same is accordingly dismissed.
Stay applications stand disposed.
Copy of this order be placed in connected file.
(PANKAJ BHANDARI),J Ashu /7-8 (Downloaded on 29/08/2019 at 10:41:11 PM) Powered by TCPDF (www.tcpdf.org)