A 138 NI complaint filed was barred by limitation but such issue was raised for the first time before the Appellate Court and not Trial Court; Read to know what Kar HC observed

Karnataka High Court

Karnataka High Court: HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

The factual matrix of the case of the respondent/complainant is that the 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 which when presented in bank were dishonoured due to ‘funds insufficient’. Hence, various legal notices were issued from time to time to make payment, but the accused did not comply with the notices. Hence, a complaint was filed wherein the Trial Court after considering both the oral and documentary evidence, convicted the petitioners. Aggrieved by which, an appeal was preferred before the Appellate Court and a contention was raised regarding the complaint being barred by limitation and no application was filed before the Trial Court and thus the very initiation of the proceeding against the petitioners is erroneous and an error has been committed in convicting the petitioners. The Appellate Court dismissed in view of the delay and remanded the matter to consider the same afresh by giving an opportunity to the 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 and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition was filed before this Court.

Counsel for petitioner Mr. Chethan AC submitted that the order passed by the Appellate Court in setting aside the judgment of the Trial Court and remanding the matter to consider afresh giving an opportunity to file an application for condonation of delay is not permissible under law and hence, it requires interference of this Court and set aside the order of remand and direct the Appellate Court to consider the matter on merits with regard to the conviction and sentence order passed for the offence punishable under Section 138 of Negotiable Instruments Act i.e. N.I. Act by the Trial Court.

Counsel for respondent Mr. Ramesh P Kulkarni submitted that no application is filed before the Trial Court for condonation of delay and the Trial Court after confirming the same on perusal of the entire order sheet gave an opportunity since for the first time, the question of delay is raised in the Appellate Court. Hence, the Appellate Court has not committed any error in setting aside the judgment of conviction and sentence and remitting the matter for fresh consideration and in giving an opportunity to file the application.

The Court observed that admittedly no application was filed before the Trial Court along with the complaint for condonation of delay. The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I. Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. If delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay.

The Court remarked that an amendment is 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. When the issue of limitation was raised before the Appellate Court, immediately the complainant filed an application before the Appellate Court for condonation of delay and the Appellate Court concluded 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 and the same is in accordance with the judgment of the Appellate Court.

The Court 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. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court.

The Court thus held “I am of the opinion that the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application.”

[A Seating v. Nandini Modulars, 2022 SCC OnLine Kar 725, decided on 08-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

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