Uttarakhand High Court
Rajesh Rastogi vs Girish Nayal on 11 April, 2018
Equivalent citations: AIRONLINE 2018 UTR 655
Author: V.K. Bist
Bench: V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.1088 of 2015
Rajesh Rastogi .....Applicant
Versus
Girish Nayal ...Respondent
Dated: 11th April, 2018
Mr. M.K. Ray, Advocate for the applicant.
Hon'ble V.K. Bist, J.
This criminal misc. application has been filed by the applicant to quash/set-aside the impugned judgment and order dated 02.3.2015 passed by the learned Chief Judicial Magistrate, Almora in Criminal Misc. Case No.06/2015 (Rajesh Rastogi vs. Girish Nayal) under Section 138 of the Negotiable Instrument Act, 1881, whereby, the learned Chief Judicial Magistrate, Almora was pleased to reject the delay condonation application of the applicant filed in support of the complaint under Section 138 of the N.I. Act and further to direct the learned Trial Court to hear and decide the complaint of the applicant in accordance with law on its merit.
2. On the last occasion notice was issued to the respondent. The Office report shows that the respondent has been served personally. All the same, none is present for the respondent before this Court.
3. The present applicant had filed a complaint at Rudrapur, under Section 138 of Negotiable Instruments 2 Act. However, since the cheque was drawn from the bank at Almora. The complaint was returned to the complainant, in view of the decision rendered by the Hon'ble Apex Court in Dashrath Rupsingh Rathod vs. State of Maharashtra reported in (2014) 9 SCC in which the Hon'ble Apex Court was of the view that Court will have jurisdiction in the matter which has within its territorial jurisdiction the branch of the bank on which the cheque is drawn. Consequently, the complaint was returned to him. However, due to his illness, the complainant could not file the complaint before learned Magistrate, Almora within one month. The complaint was rejected by the court below on the ground of delay in filing the complainant. Apparently, there is no inordinate delay on the part of the applicant. The delay itself is of four months. Moreover, the initial complaint was filed at the Court of Rudrapur which was within time. It was due to the change of law by the Hon'ble Apex Court that the situation came whereby he has to file complaint at the Court of Almora. There is, hence, bona fide delay on the part of the present applicant.
4. The Court has powers to condone the delay under Section 142 of the Negotiable Instruments Act. This has not been properly considered by the Court below. In view of this Court a highly technical view has been taken by the Court below in the matter.
5. In view thereof, order dated 02.3.2015 passed by learned Chief Judicial Magistrate, Almora in Criminal Misc. Case No.06 of 2015 is hereby set-aside. The application under Section 482 of Cr.P.C., is allowed accordingly.
36. Let the learned Magistrate consider the condonation of delay application afresh and thereafter, if same is allowed, hear the matter on merit.
(V.K. Bist, J.) 11.4.2018 A.kaur