Court Must Give Notice To Accused, Hear Him Before Condoning Delay In Filing Complaint U/S 138 NI Act: Tripura High Court

The Tripura High Court has made it clear that a court is required to issue notice to the accused and hear him before condoning the delay in filing a complaint under Section 138 of the Negotiable Instruments (NI) Act.

"...under Section 138 of the NI Act, if the original complaint is filed after the expiry of the statutory period, then, in such cases, before condoning the delay, according to the proviso to Section 142 (b) of the NI Act, the accused shall be given a notice along with a copy of the application for condonation of delay," the Bench of Justice Arindam Lodh held.

The case in brief

The Court was hearing an appeal filed challenging a 2020 judgment passed by learned Chief Judicial Magistrate, Agartala, West Tripura, in connection with a NI Act Case. In its judgment, the Court acquitted the accused-respondent had been acquitted from the charges leveled against him under Section 138 of the Negotiable Instrument Act, 1881 and dismissed the application filed by the complainant-appellant.

The trial Court dismissed the case of the appellant-complainant with the observation that in the filing of the complaint, there was a delay of 10 days and the matter was proceeded without condoning the delay as apparent on the face of the record. Consequently, the respondent/accused was acquitted.

Court's observations

At the outset, the Court noted that if a complaint is filed beyond the statutory period, as prescribed under Section 138 of the NI Act, then, the complainant must satisfy the court that he had sufficient cause for not making the complaint within such prescribed period, i.e. within one month of the date the cause of action arises under the proviso (c) of Section 138 of the NI Act.

The Court also noted that in terms of the proviso of clause (b) of sub-section (1) of Section 142 of the NI Act, the court can take cognizance only when the complainant would be able to satisfy the court that he had sufficient cause for not making the complaint within such one month.

Regarding the question as to whether the accused should be heard before condoning the delay, the Court took into account the case of Sankar Choudhury Vs. State of Tripura and Another, (2019) 2 TLR 134 and observed thus:

"So, to avail the benefit of proviso to Section 142(b) of the NI Act the complainant is mandated to file an application for condonation of delay explaining sufficient and satisfactory reasons for such delay since the said proviso appended therein is substantive and not only procedural. On receipt of such condonation application, the Court has to issue notice on it along with a copy of the complaint and dispose of the same after giving the accused a reasonable opportunity of being heard. The Court would pass an appropriate order to the merits of the application of condonation of delay at its discretion. Without exhausting this stage, cognizance shall not be taken."

Turning to the facts of the case, the Court noted that the complaint was filed before the court after 10 days of a statutory period of 30 days without filing an application for condonation of delay, and no specific order was passed condoning the said delay.

In view of this, the Court opined that the Court had taken the cognizance wrongly, and further proceeding with the trial had caused serious prejudice to both the complainant and the accused from rendering equitable justice to them. 

As a result of this, the impugned judgment of acquittal was set aside and the matter was remitted to the court of the learned Chief Judicial Magistrate, Agartala, West Tripura to proceed afresh.

Case title - Sumit Deb v. Joy Deb and another

Citation: 2022 LiveLaw (Trip) 13

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