Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:113698 (Sl.No.27) Court No. - 79 Case :- APPLICATION U/S 482 No. - 18584 of 2024 Applicant :- Kuldeep Pandit Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Anand Pandey, learned counsel for the applicant and Sri Prem Prakash Tripathi, learned AGA for the State. 2. The Instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 13.01.2023 as well as the entire proceeding of Complaint Case No. 4926 of 2019 (M/s. Dev Building Material Supplier Proprietor Smt. Nigam Sharma vs. Kuldeep Pandit), under Section 138 of Negotiable Instrument Act, P.S. Baghpat, district Baghpat, pending in the court of Additional Chief Judicial Magistrate, Baghpat. 3. Learned counsel for the applicant submits that in the instant case, the complaint was lodged beyond the prescribed time after service of legal demand notice on the applicant herein. Learned counsel for the applicant further submits that however the said delay in lodging the complaint was condoned by the trial court vide order dated 24.12.2019. Subsequently, the opposite party no.2 failed to record her statement under Section 200 Cr.P.C. for sufficiently long time. On 24.11.2021, the aforesaid complaint case was dismissed for want of statement under Section 200 Cr.P.C. of opposite party no.2. Subsequently the said order was set aside by the Revisional Court on 20.06.2022 and thereupon after recording the statement under Section 202 Cr.P.C. the learned Magistrate has summoned the applicant herein on 13.01.2023. Learned counsel for the applicant submits that since the complaint was beyond time, initially before condoning the delay, he would have been given an opportunity to oppose the delay condonation application. Therefore, he prays for quashing of the summoning order as well as the entire proceeding of the complaint case. 4. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. From the record, it is apparent that the opposite party no.2 has filed a complaint case no. 4926 of 2019 under Section 138 of Negotiable Instrument Act (hereinafter referred to as the 'N.I.Act'), alleging therein that the applicant has purchased the construction material for construction of his house in the name of his wife Pooja Sharma from the shop of the opposite party no.2. For the same, an amount of Rs. 3,00,000/- was to be paid by the applicant herein to the opposite party no.2. When the aforesaid amount demanded by the opposite party no.2, three cheques bearing cheque nos. 009416 dated 25.08.2019 for a sum of Rs. 1,00,000/- drawn on ICICI Bank, Baghpat, cheque no. 009417 dated 10.09.2019 for a sum of Rs. 1,00,000/- drawn on ICICI Bank, Baghpat and cheque no. 009418 dated 15.09.2019 for a sum of Rs. 50,000/- drawn on ICICI Bank Baghpat were issued by the applicant in favour of opposite party no.2. 5. As per the allegations made in the complaint, the applicant has directed the opposite party no.2 to present the said cheques in the month of October 2019. Thereupon on 14.10.2019, the aforesaid cheques were presented by the opposite party no.2 for encashment in Union bank of India and the same were dishonoured for the reasons "funds insufficient.' Thereupon notice dated 24.10.2019 was sent to the applicant in the legal demand notice by the opposite party no.2, which was allegedly served on 25.10.2019 on the applicant herein and since the applicant failed to comply with the aforesaid notice and to make the payment of the cheque amount. The instant complaint under Section 138 of the N.I.Act was filed on 16.12.2019. 6. From the aforesaid facts, as per the provisions of Section 142 of the N.I.Act, since the legal demand notice was served on 25.10.2019, therefore, the offence under Section 138 N.I.Act was complete after expiry of 15 days from 25.10.2019 i.e. 9th of November 2019. Therefore, as per the provisions of Section 142 (1) (b) of the N.I.Act, complaint was required to be filed within one month from the said date seeking condonation of delay. However, the same was filed along with an application under Section 142 of the N.I.Act seeking condonation of delay in filing the complaint case under Section 138 of the N.I. Act. The aforesaid application for condonation of delay was allowed by the Court on 24.12.2019. Thereupon the case was pending for recording the statement under Section 200 Cr.P.C. of the complainant i.e. the opposite party no.2. However the complainant could not record her statement under Section 200 Cr.P.C. and was absent since long. Thereupon on 24.11.2021, the said complaint was dismissed under Section 203 Cr.P.C. Subsequently, against the said order dated 24.11.2021, A revision was filed, which was allowed vide order dated 20.06.2022. Thereafter, the statement under Section 200 Cr.P.C. was recorded and the trial court having been satisfied that a prima facie case has been made out against the applicant herein, has summoned him vide order dated 13.01.2023. Despite the aforesaid, the applicant herein did not appear before the trial court, then the bailable warrants were issued on 17.03.2023, Non-bailable warrants were issued on 11.04.2023 against the applicant. On 22.08.2023, the applicant had appeared before the trial court and was granted bail vide order 22.08.2023 itself. Since then, the matter is pending trial and for the last two dates on 23.12.2023 and 02.04.2024, the applicant was absent from trial. 7. To appreciate the arguments advanced by learned counsel for the applicant with regard to an opportunity of hearing to the aforesaid case by the trial court for condoning the delay, it will be appropriate to go though the provisions of Section 142 of the N.I. Act, which reads as under: (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.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." 8. The proviso to Section 142 (1) (b) of the N.I.Act categorically provides that the court can take cognizance on the complaint, which was filed after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Therefore, from the very proviso, it is crystal clear that for condoning the delay, there is no obligation on the Court to issue notice to the accused and give an opportunity to the accused persons. It is satisfaction of the Court in condoning the delay and taking cognizance of the complaint under Section 138 of the N.I. Act. Therefore, from the plain reading of the aforesaid provisions, there is no room for any opportunity of hearing to be granted to the accused persons as the accused is not at all in picture before the cognizance is taken by him and the Magistrate could not take the cognizance unless it is satisfied that the complainant was prevented from filing the complaint due to sufficient cause within the time. 9. In the instant case, the complaint under Section 138 N.I. Act, was presented admittedly with the delay of about seven days and the complaint was accompanied with and application under Section 142 (1) (b) of the N.I.Act seeking condonation of delay and sufficient cause was shown and the learned trial court after recording its satisfaction, has condoned the delay vide order dasted 24.12.2023. 10. Therefore, in the considered opinion of this Court, there was no requirement as per the provisions of the Act to issue any notice prior to condonation of delay involving the complaint under Section 138 of the N.I.Act. Therefore, the arguments advanced by learned counsel for the applicant cannot be appreciated. Since the aforesaid provision of Section 142 was added to give credibility to the banking transactions and negotiable instruments such as cheques and merely on technical grounds of delay of some days, such complaint cannot be rejected. 11. In view of the above, this Court finds no merit in the arguments submitted by learned counsel for the applicant and therefore, the instant application under Section 482 Cr.P.C. is, accordingly, dismissed. Order Date :- 16.7.2024 Ashish Pd. (Anish Kumar Gupta,J.)