Delhi District Court
Rakesh Steel Industries Pvt.Ltd vs Shiva Udyog Barrels Pvt.Ltd on 9 May, 2014
IN THE COURT OF SH. VIRENDER KUMAR BANSAL,
ADDL. SESSIONS JUDGE: FTC (WEST): TIS HAZARI; DELHI.
Crl. Revision No. : 19/14
Rakesh Steel Industries Pvt.ltd.
Having its registered office at
C143, Anand Vihar, Vikas Marg,
Delhi110092
Through its Authorized representative
Mr.Yogesh Sharma ... Petitioner/Revisionist
Vs.
1.Shiva Udyog Barrels Pvt.Ltd.
A Company Through its Managing Director.
2. Sh.Pankaj Aggarwal
Director, Shiva Udyog Barrles Pvt.ltd.
3.Sh.Sudhir Aggarwal
Director, Shiva Udyog Barrels Pvt.ltd.
All at:
A337, First floor, Meera Bagh,
Paschim Vihar,
New Delhi. ... Respondents/Accused
Date of institution: 09.01.2014
Date of Order : 09.05.2014
ORDER
1 The present revision has been preferred challenging the order dt.10.12.13 vide which the Ld.MM dismissed the application of Rakesh Steel Industries Pvt.Ltd.
Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 1 (hereinafter referred as complainant/revisionist) for condonation of delay in filing complaint under Section 138 of Negotiable Instruments Act against Shiva Udyog Barrels Pvt.Ltd and others (hereinafter referred as respondent).
2 The brief facts giving rise to the present revision are that the complainant/revisionist filed the application under Section 138 of Negotiable Instruments Acts against the respondent but there was 3 days delay in moving the application. Therefore, an application was moved for condonation of delay alleging that when the cheques bounced on presentation, a legal demand notice dt.25.03.13 under Section 138(b) of Negotiable Instruments Acts, 1881 was issued to the accused/respondents. The notice was dispatched on 26.03.13 through registered post as well as courier. The said notice was served upon the accused/respondent on 28.03.13. 15 days was available to the accused/respondent to make the payment. 15 days time started on 29.03.13 and expired on 12.04.13 and expired on 12.04.13. The cause of action for filing the complaint arose on 13.04.13. The complaint should have been filed within one month from the date of cause of action had arisen i.e. on or before 12.05.13. The complaint could not be filed within this period and was filed on 15.05.13. It is alleged that the delay had occasioned as the complainant instructed the counsel that complainant/petitioner Company was trying to amicably sort out the matter and therefore, filing of the complaint should be deferred till as late as possible. However, the AR of the complainant on 10.05.13 informed the counsel that the settlement could not be arrived and instructed him to file the complaint. On that date the counsel was in Chandigarh. He returned to Delhi late in the evening. On 11.05.13 when the Ld.counsel checked the concerned files, he found the document missing. The documents could be trace only on 14.05.13 at the residence of the counsel. He immediately drafted the complaint and filed the same.
3 This application was opposed by the respondents/accused and the Trial court after considering the submissions, dismissed the application which order is under challenge in the Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 2 present revision.
4 Notice of revision was sent to the respondents. Trial Court record was requisitioned. Respondents also filed the reply.
5 I have heard the Ld.counsel for revisionist, Ld.counsel for respondents and perused the record.
6 Ld.counsel submitted that the trial court has not considered the entire facts and passed the order in a mechanical manner. Trial court mentioned that the counsel for the revisionist/complainant company has not filed the affidavit but the same is very much on record. Ld.counsel submitted that petitioner/complainant has sufficiently explained the delay in moving the complaint. The explanation given is plausible and justifies the delay. Law is that the word sufficient cause has to be liberally construed but the trial court has taken hyper technical view. It is prayed that the petitioner/revisionist shall not be penalized for the fault of the Ld.counsel. Ld.counsel submitted that Supreme Court also in various judgments had held that if there is a sufficient cause shown then the delay shall be condoned. Ld.counsel in support of his arguments relied upon the judgment cited as N.Balakrishnan Vs. Krishnamurthy AIR 1998 SC 3222, wherein it was held that, "Rules of Limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 3 unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis Mum (it is for the general welfare that period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words "sufficient cause"
Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice".
Ld.counsel also relied upon the judgment cited as State of Nagaland Vs. Lipok AO & Others AIR 2005 SC 2191, wherein it was held that, "The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, can not be ignored. If appeals brought by Government are lost for such defaults, no person is indiviually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts and omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 4 where public interest was shown to have suffered owing to acts to fraud or bad faith on the part of its officers or agents and where the officers were clearly at crosspurposes with it."
and also relied upon a judged cited as Collector, Land Acquisition, Anantnag and anothers Vs. Mst.Katiji and Others 1987 Vol.II S.C 107, wherein it was held that, "When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side can not claim to have vested right in injustice being done because of non deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical ground buts because it is capable of removing injustice and is expected to do so.
Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the notemaking, file pushing, and passing on the buck cthos, delay on its part is less difficult to understand though more difficult Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 5 to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigantnongrate status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present apppeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned."
Ld.counsel submitted that keeping in view all these facts the revision be allowed. Order of trial court be set aside and delay be condoned.
7 Ld.counsel for respondent submitted that trial court has rightly dismissed the complaint as there was delay and no sufficient cause was shown. Ld.counsel submitted that the revision is not maintainable and according to Section 378 (4) Cr.PC against acquittal appeal lies before Hon.High Court and hence this revision is liable to be dismissed. Ld.counsel in support of his arguments relied upon the judgment cited as Becton Dickinson India Ltd. Vs. Shika Pharma (P) Ltd. 2009 (6) AD (Delhi 168 and Kalucha Paper House Vs. Mahavir Papers 2011 (3) Crimes 427.
8 I found that in the facts of the present case the judgment relied upon by the Ld.counsel for respondents are not applicable as provisions contained under Sec.256 Cr.PC itself provide that if the complainant fails to appear, the accused shall be acquitted and therefore the appeal will lie under Sec.378(4) before the Hon.High Court, where the complaint is dismissed after the summoning of the accused. But here in the present case, the complaint is not dismissed in default and hence there is no applicability of Section 256 Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 6 Cr.PC, therefore, it does not amounts to acquittal. In my considered opinion the present revision is maintainable as this order amounts to discharge.
9 Ld.counsel for respondent further submitted that the delay has not been explained. Ld.counsel submitted that in the similar fact where the complainant did not file the complaint because he wanted to settle the dispute and therefore, did not file the complaint, the Hon.High Court has held that the delay can not be condoned. Ld.counsel in support of his arguments relied upon the judgment cited as Ram Kishor Vs. Geeta Devi2012 (4) JCC 272 (NI), wherein it was held that, "The quantum of delay as has been observed is not important, what is important is the explanation. The petitioner/complainant has not been straight forward in giving the correct reasons for the delay in filing the complaint.
It is not in dispute as has been observed by the learned Magistrate that the demand notice was met with a reply of the respondent where not only the liability of the respondent was denied but also the allegations were made that the entire amount stands paid and the cheque which continued to be with the petitioner/complainant by way of a security was misutilized and allegations of breach of trust, etc.were levelled against him.
If this is the stand taken by the respondent then in such a case, it is unthinkable that the respondent would persuade the petitioner to settle the matter and would like him to hold back his hands by not filing the complaint. Assuming for a moment, it was done, even then the petitioner/complainant ought not to have believed the same. He should have gone ahead with the filing of the complaint."
Ld.counsel submitted that in the present case also the only reason given for delay is that Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 7 they wanted to settle the dispute and therefore, it could not be filed in time. Hence, it is not a sufficient cause as required under law and trial court has rightly dismissed the application. There is no merit in the revision and same be dismissed.
10 In the present case, I found that though in the period of one month, the complainant should have filed the complaint and there was no reason for him to wait till the expiry of 30 days as the requirement of law is that complaint is to be filed within 30 days and not that on 30th day. But in the present case the complainant has instructed his counsel well before 30th day to institute the complaint as it was also right of the complainant to make last effort to settle the dispute, so that he need not file the complaint. When this attempt could not succeed, he instructed the counsel to file the complaint but the counsel on receiving this information could not trace the documents in his office which could ultimately be traced at his residence on 14.5.13 and immediately on the next date he filed the complaint. Ld.counsel has also filed his affidavit to support the application as well as the affidavit of the complainant supporting the application. The law is well settled that court has to be liberal in condoning the delay. Supreme Court has held that rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. In the present case, complainant initially attempted to get the case settled out of the court but before the expiry of limitation well in time informed the counsel to file the complaint. The counsel could not trace the documents in his office. The documents were ultimately trace at his residence on 14.5.13 and very next day he filed the complaint. This is supported by the affidavit of the Ld.counsel also.
11 Keeping in view all these facts, I found that there is a reasonable explanation and sufficient cause shown explaining the delay in filing the complaint, therefore, revision is allowed. Order of Trial court is set aside. Delay in filing the complaint is condoned. Complaint is restored to its original no. Complainant and respondent are directed to appear before the Trial court on 22.05.14. Trial Court Record be sent back to Trial Court along Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 8 with copy of this order. Revision file be consigned to Record Room.
Announced in the open court today on 09.05.2014. (VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 9 Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 10 09.05.2014 Present: None.
Vide separate order criminal revision is allowed. Order of Trial court is set aside. Delay in filing the complaint is condoned. Complaint is restored to its original no. Complainant and respondent are directed to appear before the Trial court on 22.05.14.
Trial Court record be sent back with the copy of this order.
Criminal revision be consigned to record room.
(VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI Crl. Revision No.19/14 Rakesh Steel Industries Pvt.Ltd. Vs. Shiva Udyog Barrels Pvt.Ltd & Others 11