Case BriefsHigh Courts

Allahabad High Court: In the instant case where the summoning order issued as per the requisites of Section 138 of Negotiable Instrument Act, 1881, was challenged as being ‘bad in law’ and the question arose that once the intention of the party is clear that he does not wish to make payment, should a complainant wait for 15 days to file the complaint; the Bench of Dr Kaushal Jayendra Thaker, J., answering the question in negative, dismissed the petition while observing that proviso (c) to Section 138 of the NI Act cannot be interpreted to mean that even if the accused refuses to make a payment, the complainant cannot file a complaint.

As per the facts of the case, two cheques of Rs 5,00,000 and Rs 5,98,000 were dishonoured on 28-05-2019. The complainant sent a notice on 11-06-2019. Upon not receiving any money, on 29.06.2019 the complainant filed the complaint under Section 138 of Negotiable Instrument Act, 1881. Consequently, a summoning order dated 03-09-2019 was issued whereby which the petitioner was supposed to present himself on 30-11-2019. The counsel for the petitioner Ajay Dubey upon being asked to explain that why the summoning order is bad, stated that as per the provisions of Section 138 the petitioner cannot be asked to answer the summons as he had already filed a reply and the complaint could have been filed only after 15 days of his reply and it was filed before the said date. The petitioner’s counsel further contended that summoning order was not in compliance with the provisions of Section 138 and that the application was falsely implicated due to enmity and financial dispute with the complainant.

Perusing the arguments and the Sections 138 and 142 of NI Act, the Court observed that the 15 days statutory period as per Section 138 proviso (c), is for making payment and does not constitute ingredients of offence punishable under Section 138. The proviso simply postpones the actual prosecution of the offender till such time he fails to pay the amount, then the statutory period prescribed begins for the lodging of complaint. The Court noted that, “In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be ‘no’”.[Ravi Dixit v. State of U.P., 2020 SCC OnLine All 1056, decided on 23-09-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. dismissed an interlocutory application praying for grant of special leave under Section 378(4) of the Code of Criminal Procedure against a judgment passed by Judicial Magistrate, Jamshedpur on the grounds of probable violation of the settled principle of law.  

The appellant-complainant granted a friendly loan of Rs 35,000 to accused-respondent 2 which was not paid back and the same was demanded back. The accused-respondent 2 issued a cheque in pursuance of the same demand, however, it was dishonored due to lack of funds in the bank account. Thereafter, a notice was issued which was never acknowledged by the accused-respondent 2 and consequently a complaint under Section 138 of Negotiable Instruments Act, 1881 was filed. The trial court, however, acquitted the accused-respondent 2 by concluding the complaint to be premature. 

Issue: whether there exists a prescribed period for filing a complaint to retrieve loan amount or can the same be done at any time after the issuance of notice. 

The appellant-complainant was represented by Mukesh Kumar Dubey who submitted that the trial court was mechanical in it’s approach and ignored the fact and law. Further, it was contested that the judgment is perverse and hence, the special leave should be granted.  The defense was represented by the Additional Public Prosecutor who submitted that a settled principle of law should not be hampered by such appeals. It was contended that in case of notice is not received by the payee, presumption of notice would be on the 30th day from the date of issuance and only after waiting for the statutory period of 15 days the amount would be payable. Therefore, at the earliest, the complaint can be filed after 45 days from the issuance of notice. It was contested that since the complaint was issued only in 22 days therefore, special leave should not be granted.  

The Court after considering all evidences presented concluded that the trial court acted in consonance with the settled principle of law which required a minimum of 45 days from the issue of notice of demand in case there exists no evidence to suggest receipt of notice by the concerned parties. Further, relying on Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, the court affirmed the mandated requirement of 30 days from the date of issuance of notice and held that the complaint is premature. Therefore, special leave was not to be granted. [Shyam Sundar Singh v. State of Jharkhand, 2019 SCC OnLine Jhar 768, decided on 20-06-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. rejected an application for seeking condonation of delay in the filing review petition.

The facts of the case were that the petitioner filed an RTI application against the order wherein respondent have denied filling up of 36 vacancies under the ST category or allotment of the same to a Physically Handicapped candidate in ST Category. When no response was received to the RTI application, the first appeal was made by the applicant, in which no order was passed. Thereafter the second appeal was preferred which was disposed of through an order by stating that no post was filled under ST category from Handicapped person.

Mazhar Ali Khan, counsel for the applicant stated that on obtaining the copy of the order, he could not reach the court as at that time summer vacations were going on. It was further stated that the statutory period of 30 days is prescribed under the Limitation Act as well as High Court rules and there is a delay of 446 days in filing the review petition. It was further submitted that there was a cause of action after the order of the second appeal under the RTI Act and the delay can be condoned as it was otherwise beyond the control of the petitioner.

The Court was of the opinion that the rules of limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner so as to save the system from anarchy. The Court added that the law of limitation fixes a life span for every legal remedy. It was further held that the applicant was gross negligent that the word sufficient cause was not used in the application. The court thus held that Law is also clear that each day after limitation time, is required to be explained by cogent means. It cannot be set aside on flimsy grounds and at the wish of applicant who remained all along negligent. Thus the application seeking condonation of delay along with review petition was dismissed by the Court.[Harish Chander v. State of J&K, 2019 SCC OnLine J&K 481, decided on 28-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench of Tarlok Singh Chauhan, J., dismissed a revision petition filed against the order of the first appellate court, whereby the appeal filed by the petitioner was dismissed on the ground of delay.

The main issue that arose before the Court was whether the first appellate court was justified in rejecting the petitioner’s application for condonation of delay and resultantly dismissing his appeal.

The Court observed that it is a settled principle of law that in matters where a delay has been caused, the courts should generally adopt a liberal approach because sometimes refusal to condone delay might result into travesty of justice. The Court further observed that cause of substantial justice should be preferred over the technical consideration, however, the Court must also be vigilant and cautious because there is an increasing tendency of treating delay as a non-serious matter. The Court must look for bona fides of the person seeking condonation of delay and the conduct and behaviour of a party in approaching the appropriate forum, must be taken into account while considering an application for condonation of delay. This view is backed by the Supreme Court judgment in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.

The Court held that it is incumbent upon the party seeking condonation of delay to show sufficient cause which prevented the petitioner from filing the application within the statutory period. The Court held that even though the petitioner was aware of the outcome, she did not take any steps and it was only after a delay of 350 days that she filed an appeal before the appellate court. Hence, the lower courts had rightly rejected her appeal on the ground of delay. Resultantly, the Court dismissed the revision petition and upheld the order of lower court. [Sarla Devi v. Jagan Nath,2018 SCC OnLine HP 1541, order dated 30-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Arun Palli, J. allowed the defendant to file the written statement (WS) in a civil suit even after the expiry of 90 days statutory period.

A civil suit was filed against the defendant on 08-09-2017. He caused his first appearance before the court on 29-11-2017 and the matter was adjourned to 08-01-2018 for filing of the written statement by the defendant. As no written statement was filed on that date, the matter was further adjourned to 19-02-2018. However, despite this last opportunity, the defendant failed to file written statement within the statutory time period of 90 days. Consequently, his defence was struck off. The defendant was in appeal against the said order.

The High Court noted that ex facie the defendant was granted two opportunities to file written statement after he caused the first appearance before the trial court. However, the Court was of the view that even if it was assumed that the defendant was remiss in pursuing his cause and failed to file written statement despite being given one last opportunity, yet the fact remained that if he was not granted one more opportunity, he shall suffer irreparable loss and injury. Giving due consideration to the said fact, the Court set aside the impugned order and allowed the defendant to file written statement on the next date of hearing already fixed by the trial court. It was also held that in case of default on part of the defendant in filing written statement even on that date, the defence will be deemed to be struck off. [Beant Singh v. Dilbagh Singh,2011 SCC OnLine P&H 15664: (2012) 3 RCR (Civil) 115 , decided on 01-06-2018]

Case BriefsHigh Courts

Calcutta High Court: The Bench of Siddhartha Chattopadhyay,J. rejected a revisional application by holding that, if a statute specifies a maximum period of investigation, then the Court cannot take that right off and also the Court cannot direct any authority further, until the statutory period of limitation gets over.

A complaint was filed stating that a press conference was conducted by the opposite parties to malign some political parties  in which a few photographs were displayed of certain politicians offering sweets to each other and the said pictures were released in the public domain. In spite of complaining to several authorities and getting no satisfactory response and action being taken, this revisional application was filed.

The complainant reached Chief Metropolitan Magistrate with the same issue, for which the Chief Metropolitan Magistrate did not apply his mind and decided that the offence does not lie under the IT Act. The State finding was dismissed by the court at the initial stage of an issue.

Concluding the issue, the Court held that an issue like this requires scientific investigation, which clearly cannot be expected from a police officer, so for that reason the intimation given by O.C. cyber crime in regard to the legal opinion being sought on the same has to be due regarded and allegation on police for rejecting the complaint outright is not correct, as, cyber law is not dependent on any other code of law and further the Court has to also abide with the statutory limitation, as it cannot go beyond that, for which the investigation has to be concluded in terms of Section 167(5) CrPC. [Jay Prakash Majumdar v. State of West Bengal, 2017 SCC OnLine Cal 16163 decided on 05-12-2017]