If Ground Of Delay In Filing S.138 NI Act Complaint Is Raised For First Time In Appeal, Case May Be Remanded Back For Consideration U/S 142(b): Karnataka HC

A single judge bench of Justice H P Sandesh said,

"In the case on hand also this is a peculiar facts and circumstances of the case and no such contention was taken before the Trial Court by the petitioners (accused under Section 138 NI Act) and if they had raised the issue of delay before the Trial Court, the complainant ought to have been given an opportunity to make necessary application to condone the delay and admittedly for the first time, the issue has been raised before the Appellate Court. Only on the ground that there is a delay, the complaint of the complainant cannot be thrown to the dustbin."

Case Background:

The petitioners M/S. A. Seating and others filed the revision petition praying before the High Court to set aside the judgment of Trial Court in convicting the petitioners herein for the offence punishable under Section 138 of the Negotiable Instruments Act and to set aside the judgment of the Appellate Court remanding the case to the Trial Court.

Complainant was running an industry in the name of M/s. Nandini Modulars. The accused gave an undertaking to the complainant that he will discharge the amount of Rs.13,58,921/- within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant. On presentation of those cheques, the same were dishonoured with an endorsement as 'funds insufficient'.

A complaint was filed and cognizance was taken and the petitioners were secured and they did not plead guilty. The Trial Court after considering both the oral and documentary evidence, convicted the petitioners herein.

In appeal the accused raised a contention that the complaint is barred by limitation and there is no application filed before the Trial Court and very initiation of the proceeding against the petitioners is erroneous. The appellate court remanded the matter to consider the same afresh by giving an opportunity to the(b) complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per law relying upon the judgment of the Apex Court in the case of Pawan Kumar Ralli and consequently, set aside the order of conviction and sentence passed by the Trial Court

Petitioners submissions:

It was contended, "There was a delay of seven days in filing the complaint and the Appellate Court wrongly observed that ground of delay was not raised at all before the Trial Court. Further, the Appellate Court has no power under the Cr.P.C to remand the case to the Trial Court for the purpose of giving an opportunity to the complainant to file a condonation of delay application. by filing the complaint itself, the delay application ought to have been filed and the same is not filed and the question of giving an opportunity does not arise.

Complainant opposed the plea:

The counsel argued, "Since for the first time, the petitioner had raised the objection with regard to the delay in filing the complaint. Hence, the Appellate Court considering the said application comes to the conclusion that deciding such an application is within the exclusive domain of the Magistrate to exercise his discretion to condone the delay and not the Appellate Court and also comes to the conclusion that the Appellate Court cannot usurp the jurisdiction of the Trial Court.

Further, it directed the complainant to prefer an application under Section 142(b) of the N.I. Act before the Trial Court and the Trial Court after taking objections from the petitioners herein shall decide the application first and then proceed in accordance with law.

Court findings:

The bench went through the order of the appellate court and said, "For the first time, the issue of delay is raised before the Appellate Court."

Further it said ,"If such defence was taken before the Trial Court as directed by this Court in the case of G. Thimmappa (supra), ought to have filed an application for condonation of delay. It is further observed that if delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay. No circumstances was arisen before the Trial Court."

It added,

"An amendment was brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration."

Then the court observed ,When the issue of limitation is raised before the Appellate Court, immediately the complainant has filed an application before the Appellate Court for condonation of delay and the Appellate Court comes to the conclusion that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court.

It added, "The Court (appellate) has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated."

Accordingly it dismissed the petition. It directed the trial Court to dispose of the matter within one year.

Case Title: M/S. A. SEATING & Others v. M/S. NANDINI MODULARS

Case No: CRIMINAL REVISION PETITION NO.1242/2021

Citation: 2022 LiveLaw (Kar) 113

Date of Order: 8TH DAY OF APRIL, 2022

Appearance: Advocate Chethan AC for petitioner; Advocate Ramesh P. Kulkarni for respondent

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