2021 (7) TMI 1035 - HC - Indian Laws

Court sets aside delay order under Section 138 N.I. Act, remands for fresh consideration.

Somappa Versus Hanamant

The Court set aside the impugned order condoning delay in filing a complaint under Section 138 of the N.I. Act and remanded the matter for fresh ... Dishonor of Cheque - condonation of delay in filing the complaint - trial court failed to grant extension, inspite of being allowed by suo moto petition - HELD THAT:- Even though the trial Court referred the averments made in the complaint, the sworn statement and documents marked on behalf of the complainant, it has not given its consideration to the dates of events which are mentioned above before condoning the delay in presenting the complaint. It is settled position of law that there must be application of mind before taking cognizance of the offence by the Court when there are several dates of events as mentioned - The impugned order does not speak that the Court has taken the said events into consideration before proceeding to pass the impugned order. The matter remanded for fresh consideration by the trial Court keeping in mind the various dates of events mentioned in the complaint in the light of the order passed by the Hon'ble Apex Court in the suo motu writ petition - petition allowed. Issues:Challenge to impugned order condoning delay in filing complaint and taking cognizance under Section 138 of Negotiable Instruments Act, 1881.Analysis:The petitioner challenged the impugned order dated 04.12.2020 passed by the trial Court, condoning the delay in filing the complaint and taking cognizance for the offence under Section 138 of the N.I. Act. The respondent filed a private complaint against the accused for dishonor of a cheque issued towards a debt. The trial Court, relying on an order by the Hon'ble Apex Court, condoned the delay and proceeded to take cognizance of the offence. The petitioner contended that the delay condonation was not extended to the accused, and the trial Court did not specify the cause of action for presenting the complaint. The respondent argued that the delay was justified due to lockdown restrictions and deliberate avoidance by the accused. The Court noted the dates of events, emphasizing the need for proper consideration before taking cognizance. It set aside the impugned order and remanded the matter to the trial Court for fresh consideration, directing the respondent to file a better affidavit. The trial Court was instructed to reconsider the case, either taking cognizance or rejecting the complaint with valid reasons. Both parties were directed to appear before the trial Court without waiting for summons.This case primarily revolved around the condonation of delay in filing a complaint under Section 138 of the N.I. Act. The Court highlighted the importance of considering all relevant dates and events before taking cognizance of the offence. It emphasized the need for proper application of mind by the trial Court, especially in cases with multiple events impacting the timeline of the complaint. The Court's decision to set aside the impugned order and remand the matter for fresh consideration underscored the significance of procedural adherence and thorough evaluation in legal proceedings. The directive for both parties to appear before the trial Court promptly demonstrated the Court's commitment to ensuring fair and just proceedings in the case.