Karnataka High Court
Sri Krishnaprasad S/O Shivaprasad ... vs Sri Doddappa L. Shirur, on 26 June, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL. A. NO.2640/2011
BETWEEN:
SRI.KRISHNAPRASAD
S/O. SHIVAPRASAD GODACHI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. MADIHAL, DHARWAD.
....APPELLANT
(BY SRI.R.H.ANGADI, ADV.)
AND:
SRI.DODDAPPA L. SHIRUR,
AGE; 65 YEARS, OCC: BUSINESS,
R/O: KCC BANK COMPLEX,
DHARWAD.
... RESPONDENT
(By SRI. SHIVARAJ S. BALLOLI, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED
ORDER DATED 11.02.2011 PASSED BY THE JMFC I COURT,
DHARWAD, IN P.C.NO. /2010 ON I.A.NO.1 AND ALLOW THE
APPLICATION.
RESERVED FOR JUDGMENT ON : 19.06.2020.
JUDGMENT PRONOUNCED ON : 26.06.2020.
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T H IS A PP E A L HA V I N G B E EN H EA R D A ND R ES E R V E D
F OR OR D E R S , CO M IN G ON F OR P R O N OU NC E M E NT O F
J U D G M EN T T H IS DA Y , THE COURT PA S S ED THE
F O L L OW IN G :
JUDGMENT
Heard the learned advocate for the appellant Sri.R.H.Angadi, who is physically present and the learned advocate for the respondent Sri.Shivaraj S. Balloli, through video conference.
2. The brief facts of the case are that; the appellant herein, as complainant filed a complaint under Section 200 of Cr.P.C. before the learned JMFC-I Court, Dharwad (hereinafter referred to as the 'trial Court') against the respondent for the offence punishable under Section 138 of Negotiation Instruments Act, 1881 (hereinafter referred to as 'the Act') read with Section 420 of IPC.
3. It is contended by the complainant before the trial Court that the accused had taken hand loan of Rs.50,000/- on 10.02.2009 to meet his family 3 necessity, agreeing to repay the same within six months. After six months, when the complainant demanded back the hand loan amount, accused had issued the cheque bearing No.953920 dated 01.10.2009 drawn on Canara Bank, Dharwad for Rs.50,000/- towards repayment of the loan amount. When the said cheque was presented for encashment, the same was dishonored with an endorsement that there was "insufficient funds" in the account of the drawer. The same was intimated to the complainant through his Banker on the same day. The complainant issued legal notice to the accused on 27.10.2009, informing him regarding the dishonor of the cheque and calling upon him to repay the cheque amount. The said legal notice was served on the accused on the very next day i.e. 28.10.2009, but the same was not within the knowledge of the complainant, as he had not received the postal acknowledgment. The 4 complainant made efforts to get the information from the postal authorities and only on 04.01.2010 he came to know that the legal notice was already served on the addressee on 28.10.2009 itself.
4. It is contended that the accused deliberately issued the cheque without maintaining the required balance in his account and he had also not repaid the cheque amount after receipt of the legal notice and thereby he has committed the offence punishable under Section 138 of the Act and requested the trial Court to take cognizance and to initiate legal action.
5. Since there was delay in filing the complaint, the complainant had filed an application under Section 141 of the Act, praying to condone the delay in filing the complaint. In the affidavit filed in support of I.A.No.1, the complainant contended that the legal notice was issued by him on 27.10.2009 but he had not received the postal acknowledgment to evidence 5 the service of notice on the accused. Thereafter he approached the Post Office, lodged complaint and the Post Office in turn, had issued an endorsement on 04.01.2010 stating that the notice which was sent on 27.10.2009 is duly served on the accused on 28.10.2009 itself. Therefore it is said that the complainant was unable to file the complaint in time and delay caused in getting endorsement from the Post Office is to be condoned.
6. Since there was delay in filing the complaint, the accused was notified.
7. Accused appeared before the trial Court represented by his advocate and filed his objection to I.A.No.1, contending that the provision quoted in the application as one under Section 141 of the Act, is not applicable to the prayer made in the application. It is contended that the reasons assigned by the complainant to seek condonation of delay is not 6 sufficient. The contention of the complainant that he had not received the postal acknowledgment and therefore he was not knowing about service of notice on the accused and also that he came to know regarding service of notice on the accused on 04.01.2010, when the postal authorities issued the endorsement to that effect, are all denied. It is stated that even though the legal notice was issued on 27.10.2009, the complaint was lodged with the postal authorities only on 09.12.2009 and even after receipt of the endorsement by the postal authorities, the complaint was not filed before the trial Court and therefore there is inordinate delay in filing the complaint, which cannot be condoned. Even after receipt of the endorsement on 04.01.2010, the complaint was came to be filed before the trial Court on 18.01.2010 i.e. after 13 days and this delay in filing the complaint is not explained. Under such 7 circumstances, the delay cannot be condoned and cognizance cannot be taken on the basis of the complaint.
8. The trial Court after taking into consideration the rival contentions of the parties, proceeded to pass the impugned order dated 11.01.2011, dismissing I.A.No.1 filed under Section 141 of the Act and consequently the complaint is also dismissed.
9. Aggrieved by the said order passed by the trial Court, the complainant has preferred this appeal on the following grounds;
10. The impugned order passed by the trial Court is illegal, perverse and the same is liable to be set aside. The reasons given by the trial Court is not just and proper. The trial Court has not properly considered the reasons assigned for condonation of delay. The trial Court should have accepted the reasons assigned and should have condoned the delay in filing the 8 complaint. Therefore he prayed for allowing the appeal and also I.A.No.1, filed before the trial Court by condoning the delay in filing the complaint and to direct the trial Court to take cognizance of the complaint.
11. The learned advocate for the appellant contended that even though the legal notice as required under Section 138 of the Act, was issued by the complainant on 27.10.2009, calling upon the accused to pay the cheque amount, he had not received postal acknowledgment and therefore was not informed about the service of notice on the accused. When he lodged a complaint with the postal authorities, he received an endorsement only on 04.01.2010 informing that the legal notice is already delivered to the addressee on 28.10.2009 itself. Therefore, only on 04.01.2010 the complainant came to know about the service of notice on the accused 9 and he filed the complaint before the trial Court on 18.01.2010, which is well within time. It cannot be said that there is inordinate delay in filing the complaint as per the proviso to Section 142 of the Act. The cognizance of the complaint may be taken since the complainant had shown sufficient cause in filing the complaint within the specified period.
12. Per contra the advocate for respondent contended that there is inordinate delay in filing the complaint. There is no bonafides on the part of the complainant. Even though he had issued the notice on 27.10.2009, he was not bothered to know as to whether the notice was served on the accused or not till 09.12.2009. It was on 09.12.2009, the complainant said to have lodged the complaint and received the endorsement dated 04.01.2010 from the postal authorities. Even after receipt of the said endorsement dated 04.01.2010, the complainant had 10 not thought it fit to file the complaint before the trial Court till 18.01.2010. The complainant has also not explained the delay caused during the said period. Under such circumstances, there is unexplained delay in filing the complaint and therefore the complaint is not maintainable. The trial Court properly appreciated the position of law and rightly rejected the application for condonation of delay.
13. The learned advocate for the respondent relied on the decision in T.S.MURALIDHAR Vs. 1 H.NARAYANA SINGH wherein this Court considered the situation where the notice issued by the complainant was served on the accused on 18.12.2003 but the complaint was filed on 09.02.2004 i.e. beyond the period of limitation and since there was no application seeking condonation of delay before taking cognizance of the matter, it was held 1 2010 STPL 9686 KAR 11 that the learned Magistrate was not justified in taking cognizance of the complaint filed beyond the period of limitation.
14. I have gone through the rival contentions of the parties and also the decision relied on by the learned advocate for the respondent.
15. The fact of this case is that the complainant had issued legal notice notifying the accused about the dishonor of the cheque on 27.10.2009, complainant filed complaint before the postal authorities seeking information about service of notice on the accused and the postal authorities issued the endorsement on 04.01.2020 to the complainant informing about service of notice on the accused on 28.10.2009, are not in serious dispute. Further the materials placed before the Court prima facie supports the contention of the complainant and it is sufficient to decide the application I.A.No.1 filed by the complainant before 12 the trial Court. The proviso to section 138 of the Act reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
16. Section 142 of the Act reads as under: 13
"142. Cognizance of offence.- [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 2 of 1974)-
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[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.]
17. Bare reading of these provisions of the Act, goes to show that by way of amendment w.e.f. 06.02.2003, the proviso to Section 142 (1)(b) was appended to, thereby enabling the Court to condone the delay in filing the complaint, if the complainant is successful in satisfying the Court about the sufficient cause for not making the complaint within time.
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18. In the decision that is relied on by the learned advocate for respondent i.e. T.S.MURALIDHAR (Supra), it is made clear that the complainant had not filed any application under Section 142 of the Act, seeking condonation of delay. The trial Court proceeded to take cognizance of the matter without condoning the delay and even trial was proceeded with. Under such circumstances, this Court held that before taking cognizance, it is the duty of the learned Magistrate to find out, as to whether the complaint filed is within the period of limitation as provided under Clause(b) read with Clause(c) of Section 138 of the Act and if the complainant makes out sufficient cause for condonation of delay in filing the complaint, the same may be condoned. Unless the delay is actually condoned, the learned Magistrate had no jurisdiction to take cognizance. This Court in specific terms stated that the learned Magistrate was under an 15 obligation to consider before taking cognizance, as to whether the complaint was within time and if not, as to whether complainant has made out sufficient cause for condoning the delay. Since the learned Magistrate had not condoned the delay, he had no jurisdiction to take cognizance of the offence. Therefore taking cognizance by the learned Magistrate was held without jurisdiction.
19. In the present case, the facts are entirely different. Admittedly the complainant had filed I.A.No.1 seeking condonation of delay even though I.A.No.1 is filed under Section 141 of the Act. It is well settled proposition of law that quoting of the wrong provision of law cannot be a ground to reject the application.
20. The complainant produced the postal endorsement issued by the Department of Posts dated 04.01.2010 in reply to the complaint dated 16 09.12.2009, enquiring about Registered Letter Acknowledgment Due bearing No.1705 dated 27.10.2009 and informing that the said RLAD has been delivered on 28.10.2009. Therefore it was clear that even though the Registered Letter with Acknowledgment Due was issued on 27.10.2009, addressing the accused, the complainant had not received any intimation regarding its service and it was only on 04.01.2010, the complainant was intimated regarding its service. This reason assigned by the complainant in the application cannot be said to be unreasonable. However, complainant could have filed the complaint immediately after 04.01.2010 but he filed the complaint on 18.01.2010. The delay of about 13 days in approaching the Court, cannot be said as inordinate, so as to deny the valuable right of the complainant to prosecute the accused for the offence under Section 138 of the Act. If the complaint 17 is to be dismissed on technical ground i.e. on delay of about 13 days, that will amount to preventing the complainant at the threshold level, without affording him an opportunity to put forth his contention on merits. Even if delay of the said 13 days is to be condoned, no prejudice will be caused to the accused and he can very well contest the matter on merits.
21. Therefore I am of the opinion that the delay caused in filing the complaint may be condoned in the interest of justice. The parties may contest the matter on merits.
22. I have gone through the impugned order passed by the trial Court. The trial Court has relied on the decision in T.S.MURALIDHAR (supra) and formed an opinion that the delay in the present case cannot be condoned. The said finding of the trial Court is erroneous for the reason that it has lost sight of the fact that there was no application filed seeking 18 condonation of delay in the case referred to above, which was clearly observed by the Court, while holding that the accused is entitled for acquittal. Therefore I am of the opinion that the decision referred on by the trial Court to pass the impugned order and by the learned advocate for the respondent to support the impugned order, is not at all applicable to the facts of the case.
23. Therefore the impugned order passed by the trial Court is liable to be set aside, the complaint is to be restored on file and the matter is to be remanded back to the trial Court to try the same in accordance with law. All the contentions of the parties are kept open.
Accordingly I proceed to pass the following:
ORDER The appeal is allowed.19
The impugned order dated 11.02.2011 passed by the JMFC I-Court, Dharwad on I.A.No.1 in P.C.No. /2009, is set aside.
I.A.No.1 filed by the complainant before the trial Court seeking condonation of delay in filing the complaint, is allowed and the delay in filing the complaint is condoned.
The private complaint before the trial Court is restored on file and the same is remitted back to the trial Court for disposal in accordance with law.
Since the complaint is of the year 2011 and since both the parties are represented by their respective advocates before this Court, they are directed to appear before the trial Court within 30 days from this day and assist the trial Court in disposal of the matter at an early date. 20
Registry is directed to send back the trial Court records with a copy of this judgment to the trial Court, forthwith.
SD/-
JUDGE KGK