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Delhi District Court

In Re vs Surender Kumar on 9 September, 2022

                                              Crl. Revision No. 58/2021

           IN THE COURT OF MS. SMITA GARG,
     ADDITIONAL SESSIONS JUDGE­03, NORTH DISTRICT,
                ROHINI COURTS, DELHI.

Crl. Revision No. 58/2021
In re:
         Dinesh Bansal
         Ishan Hospital
         Through Director,
         Plot 1, Pocket 8B, Sector 19,
         Rohini, Delhi                               ......... Petitioner
                        Versus

         Surender Kumar
         S/o Sh. Jai Narayan
         R/o H. No. E­182, Yadav Nagar,
         Delhi­110042                             ......... Respondent

             Date of filing of revision petition          : 24.03.2021
             Date on which judgment was reserved          : 06.09.2022
             Date of pronouncement of judgment            : 09.09.2022

JUDGMENT:

1. This revision petition under Section 397 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') lays challenge to order dated 13.01.2021 passed by the Ld. MM (NI Act), North District, Rohini Courts, Delhi in complaint case No. Dinesh Bansal v. Surender Kumar Page No. 1/ 7 Crl. Revision No. 58/2021 3927/2020 titled 'Dinesh Bansal v. Surender Kumar' whereby cognizance of the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the Act') was declined and the complaint case was dismissed.

2. The brief background which led to the present proceedings is that the petitioner herein instituted the above mentioned complaint case under Section 138 of the Act against the respondent on 07.12.2020. The petitioner, who is the Director of Ishan Hospital, alleged that the wife of the respondent remained admitted in their hospital from 11.08.2019 to 13.08.2019 for which a bill of Rs. 27,045/­ had been raised and since the respondent expressed inability to pay the said amount in cash, he had issued a post dated cheque bearing no. 000449 dated 01.01.2020 drawn on ICICI Bank, Sector 33, Gurgaon, Haryana in favour of the petitioner with the assurance that the same would be honoured on presentation. On 02.01.2020, the said cheque was returned unpaid with the remark 'insufficient funds'. On the request of the respondent, the petitioner again presented the cheque but it was returned unpaid on 03.03.2020 with the remark 'payment stopped by drawer'. The petitioner issued a legal notice dated 13.10.2020 under Section 138 NI Act to the Dinesh Bansal v. Surender Kumar Page No. 2/ 7 Crl. Revision No. 58/2021 respondent but despite the service of notice, the respondent did not make the payment of the cheque amount which compelled the petitioner to approach the court. On 13.01.2021, the Ld. MM declined to take cognizance of the offence and dismissed the complaint case. Relevant portion of the order is as under:

"Cheque in question was returned dishonoured on 03.03.20. Legal demand notice was sent on 13.10.2020 Hon'ble Supreme Court vide order dated 23.03.2020 in Re Cognizance for extension of limitation held that limitation in such cases will not run during lockdown. Lockdown in NCT of Delhi was lifted on 1.06.20 and e filing in district courts started from July, 2020.

Legal demand notice was not sent within 30 days from Unlock. It was sent on 13.10.2020. It is argued by the Ld. Counsel that office of complainant was closed, due to positive Covid cases. However, there is no explanation as to why notice was not sent after reopening immediately.

Delay in sending legal demand notice cannot be condoned under the Act. Period for sending legal demand notice by any manner cannot be said to be extended till 13.10.2020. Ingredients of offence under Section 138 NI Act are not made out in present case. Cognizance is declined. Complaint stands dismissed."

Aggrieved therefrom, the petitioner is before this court.

3. I have heard the counsel for petitioner. The respondent chose not to appear and contest the petition despite being served with notice. Trial court record has also been perused.

4. The counsel for the petitioner has submitted that order dated 23.03.2020 passed by the Apex Court in Writ Petition No. 3/2020, whereby it had been directed that the period of limitation prescribed under the General Law or Special Laws shall stand extended from 15.03.2020 till further orders, had remained in force till 08.03.2021 and that while recalling the extension of limitation in the said petition vide order dated 08.03.2021, the Hon'ble Apex Court had directed that the period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the period prescribed under Provisos (b) and (c) of Section 138 of NI Act. He argued that in view of the said direction of the Hon'ble Apex Court, Ld. MM committed an illegality by observing that the delay in sending legal demand notice cannot be condoned under the Act and thereby depriving the petitioner an opportunity to pursue the complaint case against the respondent in accordance with law. He urged that since the petitioner cannot be made to suffer on account of misinterpretation of the direction of the Hon'ble Supreme Court by the trial court, the impugned order is bad in the eyes of law and deserves to be set aside.

5. Section 138 of the Negotiable Instruments Act deals with the punishment for the dishonour of cheque. Proviso (b) to section mandates that upon the return of the cheque as unpaid, the payee is required to send demand notice for the payment of the cheque amount to the drawer of the cheque within 30 days of the receipt of such information by him from the bank.

6. On the onset of Covid­19 pandemic, the Hon'ble Apex Court took suo motu cognizance of the situation arising from the difficulties faced by the litigants across the country in filing the petitions/applications/suits and all other proceedings within the period of limitation prescribed under the general law of limitation or under special laws and vide order dated 23.03.2020 passed in Suo Motu Writ Petition No. 3/2020 titled In Re:

Cognizance for Extension of Limitation extended the period of limitation w.e.f 15.03.2020 till further orders. The said order was thereafter extended from time to time. In the month of March, 2021, taking note of the fact that the lock down had been lifted and the country was returning to normalcy, the extension of limitation period was recalled and vide order dated 08.03.2021 in the abovesaid petition, it was directed by the Hon'ble Apex Court that the period w.e.f 15.03.2020 till Dinesh Bansal v. Surender Kumar Page No. 5/ 7 Crl. Revision No. 58/2021 14.03.2021 shall stand excluded in computing the period of limitation.

7. In its order dated 08.03.2021, the Hon'ble Apex Court had specifically directed that the period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under provisos (b) and (c) of Section 138 of NI Act. Hence, while computing the period for service of demand notice as mandated under proviso (b) of the Section 138, the above period had to be excluded. A perusal of the trial court record shows that the cheque in question was presented within the period of validity by the petitioner. It was returned unpaid on 03.03.2020 with the remark 'payment stopped by drawer'. The petitioner sent the demand notice to the respondent on 13.10.2020. Since the order dated 23.03.2020 of the Hon'ble Apex Court was still in force and had not been recalled, the trial court clearly fell in error in dismissing the complaint case by observing that since the lockdown in Delhi was lifted on 01.06.2020, the period for sending demand notice cannot be said to be extended till 13.10.2020 and that the delay in sending the demand notice cannot be condoned under the Act.

8. For the foregoing reasons, the revision petition is allowed and the impugned order dated 13.01.2021 passed by the Ld. MM is hereby set aside. The matter is remanded to the trial court with the direction to consider the aspect of cognizance afresh keeping in view the directions of the Hon'ble Apex Court in Writ Petition No. 3/2020 with regard to extension of period of limitation in the wake of Covid­19 pandemic.

The petitioner is directed to appear before the Ld. MM on 19.09.2022 at 2.00 pm. With the above directions, the revision petition stands disposed of.

File of the revision petition be consigned to record room.

Announced in the open court                (Smita Garg)
on 09.09.2022                      Addl. Sessions Judge­03 (North),
                                         Rohini Courts, Delhi.




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