Delhi District Court
Girish Aggarwal (Director) vs Sandeep Tayal (Prop.) on 15 July, 2015
Criminal Revision No. 06/15 D.O.D.: 15.07.2015
IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE04 (NORTH): ROHINI COURTS: DELHI
Criminal Revision No. 06/15
Unique Case ID: 02404R0032832015
Girish Aggarwal (Director)
M/s. Nikunj Woods (P) Ltd.
Located at M3, B11, Jhulelal Apartments,
Pitmapura, New Delhi34. ...Petitioner
Versus
Sandeep Tayal (Prop.)
M/s Vinayak Sales Corporation
1/95, W.H.S. Timber Market, Kirti Nagar,
New Delhi15
And
30/26, Shakti Nagar, ( Near Mother Dairy)
Delhi6.
...Respondent
Date of Institution : 23.01.2015
Date on which Order was reserved: 09.07.2015
Date on which Order pronounced : 15.07.2015
O R D E R
Feeling aggrieved from the order dated 25.11.2014 (hereinafter referred to as the impugned order) passed by Ld. MM (North) Rohini Courts Delhi, the complainant/revisionist has invoked the revisional jurisdiction of this Court. Vide impugned order, Ld MM has been pleased to dismiss the complaint U/s 138 N.I Act refiled by complainant/revisionist as barred by Girish Aggarwal Vs. Sandeep Tayal Page 1 of 7 Criminal Revision No. 06/15 D.O.D.: 15.07.2015 limitation.
Brief facts relevant and necessary for deciding the revision petition are that revisionist/complainant filed complaint case U/s 138 N.I Act against respondent/accused before Ld. CMM, West District, Tis Hazari Court, Delhi. In view of dictum of law laid down by Hon'ble Apex Court in the celebrated judgment of "Dasrath Rupsingh Rathod Vs. State of Maharashtra and Anr."in Criminal Appeal No. 2287 of 2009 decided on 1 August, 2014 said complaint case was directed to be returned to the revisionist/complainant by the Court of Ld. MM (West) vide order dated 10.09.2014 with liberty to the revisionist to refile the complaint case before appropriate forum within 30 days of return of the complaint. However, revisionist/complainant refiled the said complaint case before Ld CMM (North) Rohini on 03.11.2014 i.e. beyond the period of 30 days, as directed in the order dated 10.09.2014.
The impugned order has been challenged by revisionist/complainant mainly on the ground that delay in refiling the complaint case was not only unintentional but also on account of peculiar circumstances as there were Court holidays in the month of October 2014 and delay was also caused in collecting complaint case from the previous Court as it took time in obtaining certified copies of original record, for being submitted before the previous Court.
I have already heard Ld counsel Sh. Manish Kapur Adv on behalf of revisionist/complainant and Ld counsel Sh. Alok Bansal Adv on behalf of respondent/accused. I have also perused the material available on record as Girish Aggarwal Vs. Sandeep Tayal Page 2 of 7 Criminal Revision No. 06/15 D.O.D.: 15.07.2015 well as the authorities cited at the bar.
Ld. counsel of revisionist/complainant submitted that revisionist had applied for certified copies of original record on 16.09.14 and certified copies were handed over to him on 19.09.2014. Thereafter, the certified copies of original record were filed before previous Court on 13.10.2014 and original documents were returned to the revisionist by previous Court only on 17.10.2014. He further submitted that there were holidays of District Courts from 02.10.2014 to 08.10.2014 and also for the period between 19.10.2014 to 26.10.2014. Therefore, there is a delay of few days in refiling the complaint case before trial Court. He contended that in view of aforesaid facts and circumstances, delay in refiling the complaint case was unintentional and due to circumstances beyond the control of revisionist. He therefore, submitted that delay in refiling the complaint case should be condoned and the complaint case should be restored.
Ld counsel of revisionist also placed reliance upon unreported decision of Hon'ble High Court of Delhi passed in C.R Petition No. 321/04 in the matter titled as " Universal Builders & Contractors Vs. Sheila Singh Uppal & Ors." in order to bring home his point that it is not necessary to move separate application for condonation of delay in filing the complaint case. He also relied upon unreported decision delivered by Hon'ble Apex Court in Criminal Appeal No. 1684/14 titled as " Pawan Kumar Ralli Vs. Maninder Singh Narula" in support of his contention that discretion conferred upon Court by virtue of proviso to Section 142(b) of N.I Act Girish Aggarwal Vs. Sandeep Tayal Page 3 of 7 Criminal Revision No. 06/15 D.O.D.: 15.07.2015 regarding condonation of delay, should be exercised liberally.
Per contra, Ld counsel of respondent/accused vehemently opposed the submissions made on behalf of revisionist. He argued that the impugned order is well reasoned order and does not require any interference in exercise of revisional jurisdiction by this Court. Ld counsel referred to the relevant portion of decision in the matter of Dasrath Rupsingh Rathod's case mentioned (supra), in support of his submission that complaint case has to be refiled within 30 days from the date of its return by the Court. He pointed out that there is considerable delay in refiling the complaint case on the part of revisionist and no sufficient reason has been explained for condonation of delay in refiling the complaint case. Therefore, the revision petition is liable to be dismissed.
Ld counsel of respondent further argued that provision contained in Section 142(b) of N.I Act is having overriding effect over general law and therefore, the revisionist has to spell out exceptional circumstances while seeking condonation of delay in refiling the complaint case before the Court. He contended that there was no requirement to apply for certified copies of original documents before collecting the original record from the previous Court and therefore, no benefit should be given to the revisionist/complainant for the time taken by him in obtaining the certified copies of the original record. In order to buttress the said contentions, Ld counsel of respondent/accused also relied upon judgments reported at 2013 (6) LRC 181 (SC) and 2008 (3) LRC 231 (SC).
Girish Aggarwal Vs. Sandeep Tayal Page 4 of 7
Criminal Revision No. 06/15 D.O.D.: 15.07.2015 It is quite evident from the above discussion that complaint case was directed to be returned to the revisionist by previous Court on 10.09.2014 with liberty to refile the same within 30 days from the date of its return. Thus, it was the duty of revisionist to refile the complaint case in terms of order dated 10.09.2014 as well as in terms of directions issued by Hon'ble Apex Court in the case of Dasrath Rupsingh Rathod's case mentioned (supra). It is an undisputed fact that there is delay of few days in refiling the complaint case on the part of revisionist. It is also not in dispute that no separate application for condonation of delay was moved by revisionist at the time of refiling the complaint case. Nevertheless, the revisionist/complainant cannot be nonsuited merely on the ground that no separate application for condonation of delay had been moved by him before trial Court. It is well settled law as also held by our own High Court in the matter of Universal Builders & Contractors mentioned (supra), that there is no requirement in law for moving an application for condonation of delay. Although, it is a matter of practice that applicant files such an application but the power of the Court is not necessarily dependent on formal application being moved by the applicant. Although, the said decision has been delivered in the context of civil proceedings but same analogy applies to the proceedings U/s 138 N.I Act also. The proceedings instituted for offence punishable U/s 138 N.I. Act is quasi civil in nature.
Moreover, the plain reading of language used in proviso appended to Section 142(b) of N.I Act leaves no scope of doubt that Court is well within Girish Aggarwal Vs. Sandeep Tayal Page 5 of 7 Criminal Revision No. 06/15 D.O.D.: 15.07.2015 its power to condone the delay in filing the complaint case U/s 138 N.I Act if the complainant satisfies the Court on the part of delay. While saying so, I am also fortified by the decision in the matter of Pawan Kumar Ralli's case mentioned (supra) which is relied by revisionist.
No doubt, there is delay of few days in refiling the complaint case on the part of revisionist/complainant. The revisionist was duty bound to refile the complaint case on or before 11.10.2014 but he actually refiled the same only on 03.11.2014 but the fact remains that Courts were on vacation between 02.10.2014 to 08.10.2014 and again for the period between 19.10.2014 to 26.10.2014. The revisionist has explained that he had applied for certified copies of original record for being filed before the previous Court before receiving the original record/documents for being refiled before the concerned Court of Competent jurisdiction and it took sometime in following the said course. Ultimately, it is the revisionist/complainant who has suffered for the delay caused in the trial of the case by not refiling the complaint case within the prescribed period. In this backdrop and keeping in view the peculiar facts and circumstances as mentioned herein above, I am of the view that there exists sufficient ground for condonation of delay in refiling the complaint case by the revisionist/complainant before the Court below.
Moreover, it is well settled law that endevour should be made by the Court to decide the case on merits rather than to go into technicalities. It cannot be over looked that the revisionist/complainant filed complaint case for the offence U/s 138 N.I Act on the basis of cheques in question amounting to Rs. 9,83,155/. It is relevant to note that considerable amount is involved in Girish Aggarwal Vs. Sandeep Tayal Page 6 of 7 Criminal Revision No. 06/15 D.O.D.: 15.07.2015 the matter and thus, it was not appropriate on the part of trial Court to dismiss the complaint case as barred by limitation. For the negligent conduct on the part of revisionist in causing delay in refiling the complaint case, he could have been put to appropriate terms.
For the foregoing reasons, request for condonation of delay in refiling the complaint case made by revisionist/complainant is hereby allowed and delay in refiling the complaint case by revisionist before Court below, is hereby condoned subject to deposit of cost of Rs. 10,000/ in recognized Blind School within one week from the date of this order. The revisionist is directed to file receipt regarding deposit of said cost before trial Court. The complaint case refiled by revisionist/complainant is directed to be restored to its original number subject to deposit of cost as directed above. Both the parties are directed to appear before trial Court on 22.07.2015 at 10.00 am. TCR be sent back alongwith copy of this order. File of revision petition be consigned to Record Room.
Announced in open Court today
on 15.07.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
Girish Aggarwal Vs. Sandeep Tayal Page 7 of 7