Madras High Court
P. Raju vs U. Ram Babu on 29 January, 2013
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-01-2013 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN Criminal Revision Case No. 1745 of 2011 and M.P. No. 1 of 2011 P. Raju .. Petitioner Versus U. Ram Babu .. Respondent Criminal Revision Petition filed under Section 397 and 401 of Cr.P.C. against the order dated 02.06.2011 passed in M.P. No. 1642 of 2010 in unnumbered C.C. No. of 2010 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai. For Petitioner : Mr. A.A. Lawrence For Respondent : Mr. P. Kumaresan for Mr. C.V. Kumar ORDER
The petitioner, who is arrayed as accused in unnumbered C.C. No. 2010 filed by the respondent under Section 138 of the Negotiable Instruments Act, has come forward with this Criminal Revision Case challenging the order dated 02.06.2011 passed in M.P. No. 1642 of 2010 by the learned IX Metropolitan Magistrate, Saidapet, Chennai, by which the petition filed by the respondent, for condoning the delay of 67 days in filing the complaint, was allowed.
2. According to the respondent, he entered into a Memorandum of Understanding with the petitioner on 24.12.2007 for negotiating the sale of lands with prospective buyers. As per the Memorandum of Understanding, the petitioner paid a sum of Rs.90,00,000/- by way of cheque to the respondent and agreed to complete the terms of the agreement within 150 days from the date of signing the Memorandum of Understanding. Since the petitioner could not fulfill the terms of the agreement dated 24.12.2007, another agreement came to be entered into on 08.08.2008 which provides for return of the advance amount of Rs.90,00,000/- together with liquidated damages of Rs.35,00,000/-. As per the agreement dated 08.08.2008, the petitioner issued three cheques dated 09.09.2008, 14.09.2008 and 19.09.2008 for Rs.45 lakhs, Rs.45 lakhs and Rs.35 lakhs drawn in favour of the respondent. Even though the cheques were drawn during September 2008, at the request of the petitioner, the respondent did not present the cheques till 17.01.2009. Thereafter, the respondent presented the cheques for encashment, but they were returned for the reasons "insufficient funds". On 10.02.2009, the respondent issued a statutory notice calling upon the petitioner to repay the cheque amount. On receipt of the notice, the petitioner sent a reply dated 22.02.2009 denying his liability to pay the cheque amount. Thereafter, the respondent has filed the aforesaid unnumbered complaint under Section 138 of the Negotiable Instruments Act.
3. The learned counsel for the petitioner mainly contended that the revision petitioner has originally filed the complaint before the learned VII Metropolitan Magistrate, who has no jurisdiction to entertain the complaint. When the complaint was filed with a delay of 6 days in filing the same, it was not accompanied by a petition to condone the delay. Since the complaint itself was filed beyond the period of limitation, that too before a Court which has no jurisdiction to entertain the same, the learned IX Metropolitan Magistrate, ought not to have entertained the complaint or condoned the delay in filing the complaint. According to the learned counsel for the petitioner, the provisions contained in Section 14 of the Limitation Act will not be of any use to the present complaint inasmuch as the one month time granted under Section 142 of the Negotiable Instruments Act cannot be extended by the Court. If at all there was any delay, it can be condoned only upto a period of one month and not beyond that period. The learned counsel for the petitioner further contended that the delay in filing the complaint was not 6 days or 67 days as claimed by the respondent, but the delay, if properly calculated, will be 366 days from the date of presentation of the complaint namely 02.04.2009 till 11.03.2010, on which date, the complaint was presented before the learned IX Metropolitan Magistrate, Chennai. Therefore, the Court below was misled by the respondent with respect to the delay in filing the complaint. Therefore, he prayed for setting aside the order passed by the Court below.
4. Per contra, the learned counsel for the respondent/complainant mainly contended that in so far as condonation of delay is concerned, after the amendment of the Negotiable Instruments Act, Section 142 (b) was inserted by which the trial courts have been given enormous powers to condone any number of days delay provided the reasons assigned for condonation of such delay convinces the Court. On being satisfied with the reasons assigned, the Court can extend the time for filing the complaint by condoning the delay in filing the complaint. Further, there need not be any application for condonation of delay at the time of filing the complaint. Even in the absence of any such application, the Court can always direct the complainant to file appropriate application for condoning the delay by granting time. In any event, this is only a curable defect and the mere delay in filing the complaint will not disentitle the complainant to give up his claim. Further, Section 473 of Cr.P.C. empowers the Courts to extend the time in tune with Section 142 of the Negotiable Instruments Act. The Act contemplates presentation of a complaint before a Court of law and it does not contemplate filing the Complaint before the proper court having jurisdiction. Even if the complaint was filed before a wrong forum, definitely, Section 14 of the Limitation Act can be made applicable to condone the delay in filing the complaint. According to the counsel for the respondent, the delay was only 6 days, however, as an abundant caution, the respondent included the period during which the complaint was prosecuted in a Court which has no jurisdiction and filed the petition for condoning 67 days. In any event, in the present case, reasons have been assigned for the delay in filing the complaint and the Court below, after satisfying with such reasons, condoned the delay and entertained the complaint. The court below has properly exercised its discretion to condone the delay in filing the complaint and therefore such discretionary power exercised by the court below need not interfered with by this Court.
5. I heard the counsel for both sides and perused the materials on record. In order to decide the case on merits, certain facts are germane and necessary for consideration. As per the records, the petitioner issued three cheques dated 09.09.2008, 14.09.2008 and 19.09.2008 for Rs.45 lakhs, Rs.45 lakhs and Rs.35 lakhs respectively drawn in favour of the respondent. Even though the cheques were drawn during September 2008, at the request of the petitioner, the respondent did not present the cheques till 17.01.2009 and thereafter, the cheques were presented on 17.01.2009 and they were returned. The respondent issued a statutory notice on 10.02.2009, which was served on the petitioner on 13.02.2009. On receipt of the same, the petitioner sent his reply on 22.02.2009 denying his liability to pay the cheque amount. Therefore, as per the provisions of the Negotiable Instruments Act, within 45 days from 13.02.2009, being the date of receipt of the statutory notice by the petitioner/accused or the date on which he acknowledged the statutory notice, the respondent has to file the complaint under Section 138 of The Negotiable Instruments Act before the Court of law. While so, the respondent ought to have filed the complaint before the Court of law on or before 28.03.2009, which is the last date for filing the complaint within the period prescribed under the statute, but the complaint was presented by the respondent on 02.04.2009 before the learned VII Metropolitan Magistrate, Saidapet, Chennai, which according to the petitioner, has no jurisdiction to entertain the complaint.
6. The complaint filed by the respondent was taken on file by the learned VII Metropolitan Magistrate, Saidapet, Chennai on 04.06.2009 and it was adjourned till 11.01.2010. On 11.01.2010, an order was passed by the learned VII Metropolitan Magistrate, Saidapet, Chennai returning the complaint to be presented before the proper Court having territorial jurisdiction by granting two months time for re-presentation before the proper Court. According to the revision petitioner, the complaint was re-presented again on 11.03.2010 and made an oral representation before the very same VII Metropolitan Magistrate Court, Saidapet, Chennai by contending that the statutory notice was issued by the lawyer having his office from Madras which comes under the jurisdiction of 'B-12 Police Station', the Court namely learned VII Metropolitan Magistrate, Saidapet, Chennai has jurisdiction to entertain the complaint. On such oral representation and on re-presentation of the complaint, the learned VII Metropolitan Magistrate, Saidapet, Chennai passed an order on the very same day namely 11.03.2010 directing the petitioner to present the complaint before the proper Court having jurisdiction by relying upon the decision of the Honourable Supreme Court reported in (Harman Electronics (P) Ltd., vs. National Panasonic India (P) Ltd.,) (2009) (1) SCC 720. Resultantly the Court below directed the respondent/complainant to present the complaint before the proper Forum by granting two months time. Pursuant to such order dated 11.03.2010 of the learned VII Metropolitan Magistrate, Saidapet, Chennai, the respondent re-presented the complaint before the learned IX Metropolitan Magistrate, Saidapet, Chennai on 21.04.2010 together with an application for condonation of delay of 67 days.
7. Originally, when the respondent filed the complaint before the VII Metropolitan Magistrate, Saidapet, Chennai on 02.04.2009, there was only 6 days delay namely from 28.03.2009 to 02.04.2009. Thereafter, the complaint was adjourned for some time and ultimately, it was not entertained and directed to be re-presented before the proper Court, which the respondent did on 21.04.2010 by re-presenting the complaint before the learned IX Metropolitan Magistrate, Saidapet, Chennai. Admittedly, the respondent filed the complaint on 02.04.2009 before the learned VII Metropolitan Magistrate, Saidapet, Chennai even though it has no jurisdiction to entertain the complaint, which is evident that the officer attached to the Court of VII Metropolitan Magistrate, Saidapet, Chennai has signed the complaint on 02.04.2009. Even though the complaint was presented on 02.04.2009, it was taken up for hearing only on 04.06.2009 and therefore, while filing an application for condoning the delay, the respondent, as an abundant caution, included even those days namely 02.04.2009 to 04.06.2009 also for the purpose of calculating the number of days delay and filed the application for condoning 67 days delay, even though there was only 6 days delay in filing the complaint.
8. From the above facts, two things are admitted. The complaint was originally presented before the learned VII Metropolitan Magistrate, Saidapet, Chennai on 02.04.2009 without an application for condonation of the delay. Pursuant to the order dated 11.03.2010 of the learned VII Metropolitan Magistrate, Saidapet, Chennai, the complaint was re-presented before a proper Court having jurisdiction namely IX Metropolitan Magistrate, Saidapet, Chennai on 21.04.2010. In other words, the learned VII Metropolitan Magistrate, Saidapet, Chennai ought to have returned the complaint even on the first date of hearing, on which date itself, the complaint was filed with a delay. The delay has to be calculated from the date of presentation of the complaint before the wrong forum namely 28.03.2009 till the date of re-presentation of the complaint before the Court having jurisdiction namely on 11.03.2010, in such event, the delay will be 366 days in filing the complaint.
9. In this context, the learned counsel for the petitioner relied on various decisions of various High Courts, of which, some of them, which are relevant are referred to hereunder.
10. The learned counsel for the petitioner relied on the decision reported in (P. Sarathy vs. State Bank of India) AIR 2000 SC 2023 wherein the Honourable Supreme Court categorically held that for exclusion of time under Section 14 of the Limitation Act, the time spent in prosecution of another proceedings can be taken note of. In that particular case, the Honourable Supreme Court held that Section 14 of the Limitation Act does not speak about a Civil Court, but speaks only of a Court. It is not necessary that the Court spoken to in Section 14 should be a Civil Court. Any authority or Tribunal having the trappings of a Court would be a Court within the meaning of this Section. It was further held that the petition pending before the Deputy Commissioner of Labour (Appeal) cannot be a Civil Court within the meaning of Civil Procedure Code, but it is definitely a Court within the meaning of Section 14 of the Limitation Act. Therefore it was held that the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the appeal under Section 41 (2) before the Deputy Commissioner of Labour (appeals) till it was dismissed, will have to be excluded for computing the period of limitation for filing the suit for a declaration that the removal of the appellant was illegal, ultra vires and valid. As per this decision of the Honourable Supreme Court, in the present case, even though the complaint was presented before a Court having no jurisdiction, the period during which the complaint was pending before the wrong forum has to be excluded and therefore, the contention of the counsel for the petitioner that the delay has to be calculated from the date of presentation of the complaint before the wrong forum till it was represented before the Court having jurisdiction has to be rejected. In fact, this decision relied on by the counsel for the petitioner only supports the case of the respondent.
11. The learned counsel for the petitioner also relied on the decision of the Division Bench of the Kerala High Court reported in (Abdurehiman vs. Sethu Madhavan) II (2007) BC 688 wherein it was held that "while entertaining an application for condonation of delay under Section 142, there is no requirement that the complainant should file an affidavit in support of the petition for condonation of delay; nor is he obliged to file an application. Sufficient cause however be shown in the complaint itself or in the application for condonation of delay or in the affidavit, if any, or in other materials which would be sufficient to satisfy the Court that the complainant had sufficient cause for not filing the complaint within the specified period. Procedural povision, as held by the Apex Court in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh ; AIR 2006 SC 269 should not be allowed to defeat the substantive rights to cause injustice." Thus, it is seen that at the time of filing the complaint, the respondent was not obliged to file an application for condoning the delay, as contended by the petitioner. Thus, this decision also do not lend support to the case of the petitioner and it only supports the case of the respondent.
12. The learned counsel for the petitioner also relied on the decision of this Court reported in (S.N. Jayarama Aiyar and others vs. S. Rajagopalan) AIR 1965 Madras 459 (Vol.52, C.167) for the proposition that when a case was filed in a wrong forum, then the case cannot be filed beyond the period of limitation by applying Section 14 of the Limitation Act. Even if this is accepted, then it remains that the period during which the case was pending in the wrong Court cannot be condoned. In such event, the entire length of delay commencing from 02.04.2009 till the date on which the complaint was re-presented i.e., 21.04.2010 before the correct forum i.e., IX Metropolitan Magistrate, Saidapet, Chennai has to be calculated for condonation of delay. If the delay is calculated from 02.04.2009 till 21.04.2010, the period of delay will be 366 days. As stated supra, after insertion of Section 142 (3), the trial court is empowered to condone the delay if the Court is satisfied with the reasons assigned by the complainant. In this case, the complainant/respondent would state that the delay had occurred because the complaint was presented in a wrong forum. Therefore, the Court below, invoking the powers under Section 142 (3) of the Negotiable Instruments Act, condoned the delay on being satisfied with the reasons assigned by the complainant/respondent. Thus, the reason assigned by the complainant/respondent is an acceptable reason and the court below is justified in condoning the delay in accordance with the decision of the Honourable Supreme Court reported in (P. Sarathy vs. State Bank of India) AIR 2000 SC 2023 relied on by the counsel for the petitioner.
13. In this context, it is worthwhile to refer to the decision relied on by the counsel for the respondent reported in (R. Kanthimathi and 2 others vs. Bank of India, Dharmapuri Branch, rep. by its Senior Manager, Vijayaragaran, Dharmapuri) (2007) 4 CTC 524 in which case also, this Court had an occasion to consider that there was no application to condone the delay along with the complaint and held that non-filing of an affidavit or petition to condone the delay is not a reason to quash the proceedings. It was further held that the complainant was directed to file an affidavit giving reasons for the delay in filing the complaint and the trial court was directed to expedite the disposal of the complaint on merits after giving notice to the other side. This decision was rendered by this Court following the decision of the Honourable Supreme Court reported in (State of Madhya Pradesh vs. Pradeep Kumar) 2000 (4) CTC 434. In para No. 17 and 18 of the decision, this Court held as follows:-
"17. In the decision, State of Madhya Padesh vs. Pradeep Kumar, 2000 (4) CTC 434, the Hon'ble Supreme Court of India has ruled in a Second Appeal filed under Order 41, Rule 3-A of CPC that when there is delay and the appeal is preferred without petition to condone the delay, the Court can return the memorandum of appeal as defective and the application can be filed for condonation thereafter, since such defect can be cured by the party.
18. In the light of the decisions referred by both the learned counsel, it is clear that the petition filed without an accompanying affidavit, setting out reasons for the delay, would not be sufficient to quash the proceedings initiated under Section 138 of Negotiable Instruments Act, since it is only a curable defect. Therefore, the respondent/complainant shall file an affidavit setting out the reasons for the delay in filing the complaint and the Trial Court, thereafter shall provide opportunity to the petitioners/accused to raise their defence, by way of filing counter and if the Court satisfies that there are adequate and cogent reasons to condone the delay, the same can be decided on merits. As it is a curable defect, I am of the considered view that the complaints cannot be quashed, as prayed for by the petitioners."
14. In the present case, even in the order of return dated 11.03.2010, two months time was granted to enable the complainant to present the complaint before the proper Court having jurisdiction. Thereafter, the respondent has filed the application in M.P. No. 1642 of 2010 in unnumbered C.C. No. of 2010 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai to condone the delay of 67 days in filing the complaint.
15. According to the petitioner, even though the VII Metropolitan Magistrate has no jurisdiction to entertain the complaint, the respondent deliberately re-presented the complaint on 11.03.2010 and made a oral representation contending that the Court has jurisdiction to entertain the complaint inasmuch as the statutory notice was issued by the lawyer having office at Madras. Even though the complaint was re-presented before the very same Court namely VII Metropolitan Magistrate, Saidapet, Chennai, it was returned on the same day by passing an order dated 11.03.2010 by stating that as per the decision of the Honourable Supreme Court reported in (Harman Electronics (P) Ltd., vs. National Panasonic India (P) Ltd.,) (2009) (1) SCC 720 wherein it was held that (i) the place of issuance of the statutory notice will not confer any jurisdiction on a Court but only the place where the notice was served on the accused (ii) the place where the cheque drawn will not confer a jurisdiction but the place where the cheque was returned unpaid by the drawee bank and (iii) the place where the statutory notice demanding payment of the cheque amount was served. Thus, it is clear that the place where the cheque was presented before the holders bank and the place of issuance of statutory notice will not confer jurisdiction on a Court. Under those circumstances, the learned VII Metropolitan Magistrate, Saidapet, Chennai is right in holding that the complaint presented by the complainant before it cannot be entertained for want of jurisdiction. Even though the complaint was presented before a wrong forum, having no jurisdiction, that by itself will not disentitle the respondent to file the complaint.
16. In the present case, no doubt, the respondent has filed an application for condonation of 67 days delay in filing the complaint by calculating the period during which the complaint was prosecuted in the wrong forum namely VII Metropolitan Magistrate, Saidapet, Chennai. Originally, the complaint was filed on 02.04.2009 before the learned VII Metropolitan Magistrate, Saidapet, Chennai and he ought to have filed the complaint on or before 28.03.2009, thus, there was 6 days delay in filing the complaint even before the learned VII Metropolitan Magistrate, Saidapet, Chennai, who admittedly has no jurisdiction to entertain the complaint. But after the petition for condonation of delay was returned by the learned VII Metropolitan Magistrate, Saidapet, Chennai, the petitioner re-presented the complaint before the learned IX Metropolitan Magistrate, Saidapet, Chennai, who alone has jurisdiction to try the complaint, with a delay of 67 days in filing the complaint, by calculating the period during which the complaint was pending before the wrong forum namely learned VII Metropolitan Magistrate, Saidapet, Chennai.
17. Now, the learned counsel for the petitioner argues that originally, the complaint was filed on 02.04.2009 before the learned VII Metropolitan Magistrate, Saidapet, Chennai, which is beyond the period prescribed under the Statute and therefore, the delay of 6 days cannot be condoned. It is further argued by the learned counsel for the petitioner that if at all, the respondent ought to have filed the petition for condonation of delay by calculating the entire length of delay namely 366 days in filing the complaint before the learned IX Metropolitan Magistrate, Saidapet, Chennai instead of mere 67 days, which is not proper. Such a contention urged by the counsel for the petitioner cannot be countenanced. As per the decision of this Court reported in (R. Kanthimathi and 2 others vs. Bank of India, Dharmapuri Branch, rep. by its Senior Manager, Vijayaragaran, Dharmapuri) (2007) 4 CTC 524 even a petition to quash the criminal proceedings cannot be entertained merely because the complaint was filed without an application for condonation of delay. In the said decision, this Court, following the decision of the Honourable Supreme Court reported in State of Madhya Pradesh vs. Pradeep Kumar) 2000 (4) CTC 434 held that the complaint cannot be quashed inasmuch as there is no procedural irregularity and the defect complained of is a curable defect. In the present case, the original delay of 6 days in filing the complaint on 02.04.2009 is a curable defect and such defect can always be considered and condoned by the court.
18. In the present case, the court below namely learned IX Metropolitan Magistrate, Saidapet, Chennai, while condoning the delay, has taken two things into consideration. The complaint was originally filed by the respondent before the learned VII Metropolitan Magistrate, Saidapet, Chennai by contending that the lawyer notice emanated from the office of the lawyer which is situate within the territorial jurisdiction of the learned VII Metropolitan Magistrate, Saidapet, Chennai. However, as per the decision of the Honourable Supreme Court, in (Harman Electronics (P) Ltd., vs. National Panasonic India (P) Ltd.,) (2009) (1) SCC 720 it was held that place where the cheque was presented before the holders bank and the place of issuance of statutory notice will not confer jurisdiction on a court and therefore, the learned VII Metropolitan Magistrate, Saidapet, Chennai returned the complaint and that the petitioner had bonafide pursued the complaint before the wrong forum. The second thing that weighed the learned IX Metropolitan Magistrate, Saidapet, Chennai is that the petitioner in the affidavit has stated that he suffered from viral fever which prevented him to present the complaint in time and therefore the delay of 6 days in filing the complaint is bonafide. Such reason assigned by the respondent for condonation of the delay was found to be acceptable and satisfactory by the learned IX Metropolitan Magistrate, Saidapet, Chennai and therefore the delay was condoned. In fact, after amendment to the provisions of the Negotiable Instruments Act, with effect from 06.02.2005, Section 14 (2) of the Act empowers the Magistrate to condone the delay in filing the complaint, if the reasons assigned thereof are satisfactory and acceptable. Therefore, the learned IX Metropolitan Magistrate, Saidapet, Chennai on being satisfied that the delay in filing the complaint is reasonable, especially the delay had occurred during the period when the complaint was pending before a wrong forum, has condoned the delay. In any event, such a satisfaction arrived at by the learned IX Metropolitan Magistrate, Saidapet, Chennai to hold that there is a sufficient cause for not filing the complaint in time, cannot be interfered with by this Court.
19. In the light of the above discussion, the Criminal Revision Case fails and it is accordingly dismissed. MP No.1 of 2011 is closed.
rsh To The IX Metropolitan Magistrate Saidapet, Chennai