2022 (4) TMI 874 - HC - Indian Laws

High Court affirms Appellate Court's remand decision, instructs Trial Court on delay application under Negotiable Instruments Act.

The High Court upheld the decision of the Appellate Court to remand the case to the Trial Court for consideration of the delay application. Emphasizing ... Dishonor of Cheque - insufficiency of funds - delay of 7 days in filing the complaint - time limitation - Whether the Appellate Court has committed an error in setting aside the order and remanding the matter to the Trial Court to consider the delay and whether it requires interference of this Court? - HELD THAT:- 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. It has to be noted that 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 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 - It is important to note 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. 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 and hence 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. The original complaint is of the year 2016 and already six years have been elapsed. Hence, the Trial Court is directed to dispose of the matter within one year from today - petition dismissed. Issues Involved:1. Whether the complaint is barred by limitation.2. Whether the Appellate Court erred in remanding the case to the Trial Court for considering the delay.3. Whether the Appellate Court has the power to remand the case for filing an application for condonation of delay.Detailed Analysis:Issue 1: Whether the complaint is barred by limitation.The factual matrix reveals that the complainant, running an industry under M/s. Nandini Modulars, received four cheques from the accused as security for a loan amounting to Rs. 13,58,921/-. These cheques were dishonored due to insufficient funds. A legal notice was issued on 03.02.2017, but the accused did not comply, leading to the filing of a complaint. The Trial Court convicted the petitioners under Section 138 of the Negotiable Instruments Act (N.I. Act). The Appellate Court noted a delay of seven days in filing the complaint and remanded the case to the Trial Court to consider an application for condonation of delay, which was not initially filed.Issue 2: Whether the Appellate Court erred in remanding the case to the Trial Court for considering the delay.The petitioners argued that the Appellate Court wrongly relied on the Supreme Court judgment in Pawan Kumar Ralli's case, which pertains to specific facts and is not a general proposition of law. They contended that the Appellate Court has no power under the Cr.P.C to remand the case for filing a condonation of delay application. The Appellate Court, however, observed that the issue of delay was raised for the first time before it and not before the Trial Court. The Appellate Court, relying on the Supreme Court judgment, remanded the case to the Trial Court to consider the delay application first.Issue 3: Whether the Appellate Court has the power to remand the case for filing an application for condonation of delay.The petitioners cited various judgments to support their argument that the Appellate Court cannot remand the case for filing a condonation of delay application. They emphasized that the delay application should have been filed along with the complaint. The respondent argued that the Appellate Court correctly remanded the case, as the issue of delay was raised for the first time in the appeal. The Appellate Court concluded that the Trial Court should have the discretion to condone the delay, not the Appellate Court. The judgment of the Supreme Court in Pawan Kumar Ralli's case was cited to support this view, stating that the Trial Court should decide the application for condonation of delay.Conclusion:The High Court concluded that the Appellate Court did not err in remanding the case to the Trial Court to consider the delay application. The High Court emphasized that the issue of delay was raised for the first time in the appeal, and the Trial Court should have the opportunity to exercise its discretion under Section 142(b) of the N.I. Act. The High Court dismissed the petition, directing the Trial Court to dispose of the matter within one year.Order:The petition is dismissed. The Trial Court is directed to dispose of the matter within one year from today.