2025 (4) TMI 1103 - HC - Indian Laws

Delhi HC sets aside summoning order for dishonored cheque case due to magistrate's failure to consider limitation period under Section 142.

Aditi Singh Versus Amarendra Dhari Singh

Delhi HC set aside summoning order in dishonour of cheque case filed under Section 138 NI Act. Metropolitan Magistrate erred in taking cognizance without ... Dishonour of Cheque - limitation period prescribed under Section 142 of the Negotiable Instruments Act, 1881 (NI Act) for filing a complaint under Section 138 of the NI Act - whether all the proceedings including the complaint filed by the respondent should be quashed on the ground of limitation by this Court or the impugned summoning order can be set aside and the matter be remanded back afresh to the learned Trial Court in order to enable the respondent/complainant herein to show sufficient cause of delay in filing of the complaint in terms of the proviso to Section 142 (1) (b) of the NI Act? - HELD THAT:- No doubt there has been oversight by the learned Metropolitan Magistrate as well as the learned counsel for the respondent at the time when the impugned order of taking cognizance was passed. The Hon’ble Supreme Court in Pawan Kumar Ralli [2014 (8) TMI 608 - SUPREME COURT] had emphasised that the remedy provided for condonation of delay is available to “genuine litigant” to pursue his case under Section 138 of the NI Act to overcome the technicalities of period of limitation. In Glazebrooke [2024 (11) TMI 918 - DELHI HIGH COURT], relied upon by the learned counsel for the petitioner, the issue of delay was disputed by the complainant therein, which is not the case in the present proceedings. In the considered opinion of this Court, if there is a remedy provided for in law for condonation of delay and if sufficient reasons are shown to condone the same, then the complainant, in such cases, ought to be given a chance to justify such delay. The Hon’ble Supreme Court in Sesh Nath Singh [2021 (3) TMI 1183 - SUPREME COURT] has also stated that a formal application may not be necessary for condonation of delay, if the learned Metropolitan Magistrate while taking cognizance applies his mind to the said issue and condones the delay. In the present proceedings, the same was not done by the learned Metropolitan Magistrate despite the fact of delay being disclosed by the petitioner/accused. In these circumstances, the impugned order of summoning cannot be sustained and the proceeding in pursuance of the same cannot be continued. Conclusion - The Court set aside the impugned summoning order dated 13.09.2022, holding that the learned Metropolitan Magistrate erred in taking cognizance without considering the delay or condoning it. The complaint was admitted to be filed beyond limitation without any formal condonation application. The impugned summoning order is hereby set aside - The petition is partly allowed and disposed of alongwith pending application(s), if any. The core legal questions considered by the Court revolve around the limitation period prescribed under Section 142 of the Negotiable Instruments Act, 1881 (NI Act) for filing a complaint under Section 138 of the NI Act. Specifically, the issues include:1. Whether the complaint filed beyond the prescribed period of limitation without an application for condonation of delay is maintainable.2. Whether the learned Metropolitan Magistrate erred in taking cognizance of the complaint without considering the delay and without condoning the same.3. The scope and interpretation of the proviso to Section 142(1)(b) of the NI Act regarding condonation of delay and the procedure to be followed by the Magistrate in such cases.4. Whether the Court exercising powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) should quash the complaint and summoning order on limitation grounds or remit the matter to the trial court for consideration of delay.Issue-wise Detailed Analysis:1. Limitation Period and Filing of Complaint Beyond Prescribed TimeThe relevant statutory provision is Section 142 of the NI Act, which mandates that a complaint under Section 138 must be filed within one month from the date on which the cause of action arises. The proviso to Section 142(1)(b) allows the Court to take cognizance even after the prescribed period if the complainant satisfies the Court of sufficient cause for the delay.In the present case, the cause of action arose on 12.05.2022 after the 15-day notice period expired, and the complaint was filed on 22.07.2022, beyond the 30-day limitation period. The complaint itself admitted the delay (paras 25-26) but did not specify reasons or seek condonation of delay formally.Precedents such as MSR Leathers v. S. Palaniappan and Pawan Kumar Ralli v. Maninder Singh Narula emphasize the strict timelines but also recognize the legislature's intent to provide relief to genuine litigants through condonation of delay. The Court noted that the absence of a formal application for condonation and non-discussion of delay in the summoning order was a significant procedural lapse.2. Magistrate's Cognizance Without Considering DelayThe learned Metropolitan Magistrate took cognizance and issued summons without addressing the admitted delay or condoning it. The Court observed that the impugned order did not record any discussion on limitation or delay despite the complaint's admission of being time-barred.Reliance was placed on the decision in Glazebrooke Trading Pvt. Ltd. where the Court held that a complaint filed beyond limitation without explanation or condonation is not maintainable. The Court also referred to the judgment in Simranpal Singh Suri where even a one-day unexplained delay led to setting aside the cognizance order.Thus, the Magistrate's failure to consider and condone delay before taking cognizance was found to be a procedural irregularity.3. Interpretation of Proviso to Section 142(1)(b) and Procedure for CondonationThe proviso empowers the Magistrate to take cognizance even after the limitation period if satisfied with sufficient cause for delay. The Court analyzed the legislative intent behind the proviso, introduced by the 2002 amendment, to prevent genuine litigants from being deprived of remedy due to technical delay.Judgments such as Sesh Nath Singh v. Baidyabati Sheoraphuli Co-Operative Bank Ltd. and Sri S. Nagesh v. Smt. Shobha S. Aradhya were relied upon to clarify that:The Magistrate may take cognizance first and then condone the delay; the sequence does not vitiate jurisdiction.The condonation of delay is a curable irregularity if done subsequently.The Magistrate must apply mind to the delay issue and either condone it or reject the complaint accordingly.In the present case, no such satisfaction or order condoning delay was recorded, rendering the summoning order unsustainable.4. Whether to Quash or Remand the ProceedingsGiven the procedural lapse and absence of condonation, the Court had to decide whether to quash the complaint outright or remit the matter for fresh consideration. The Supreme Court in Pawan Kumar Ralli held that the High Court should remit the matter to the trial court for adjudication on limitation rather than quashing the complaint outright, especially where the complainant has not been given an opportunity to explain delay.The Court noted that the petitioner had approached the High Court with delay of about one year after the impugned order and the complaint was at an advanced stage of trial. The Court observed that since the complaint disclosed the delay and the remedy of condonation exists, the respondent should be given an opportunity to justify the delay before the trial court.Therefore, the Court set aside the summoning order dated 13.09.2022 and remanded the matter to the learned Metropolitan Magistrate to consider the grounds for delay and condone it if satisfied, in accordance with law.Treatment of Competing ArgumentsThe petitioner argued for quashing the complaint and summoning order on limitation grounds, relying on precedents emphasizing strict adherence to limitation and the absence of any condonation application. The petitioner also highlighted the Magistrate's failure to consider delay.The respondent contended that the proviso to Section 142(1)(b) allows filing beyond limitation if sufficient cause is shown, and that reasons for delay were argued before the Magistrate who had considered and accepted them by issuing summons. The respondent relied on judgments permitting condonation without a formal application and on the legislative intent to prevent technical dismissal of genuine claims.The Court found the petitioner's contention on the absence of condonation application and non-consideration of delay by the Magistrate to be valid. However, it also acknowledged the respondent's right to seek condonation and the legislative policy to allow genuine litigants to pursue claims despite delay. The Court thus balanced the competing contentions by remanding the matter for fresh consideration rather than outright quashing.Significant Holdings and Core Principles'The remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation.''The Magistrate may take cognizance of a complaint even when there is a delay in presentation, and such irregularity is curable if the Magistrate subsequently condones the delay.''The absence of a formal application for condonation of delay does not preclude the Magistrate from condoning delay if sufficient cause is shown and the Magistrate applies his mind to the issue.''If the Magistrate takes cognizance without condoning the delay or considering the delay, such order is liable to be set aside.''Where the complaint discloses delay but no condonation is sought, the High Court should remit the matter to the trial court to enable the complainant to seek condonation and justify delay rather than quash the complaint outright.'Final DeterminationsThe Court set aside the impugned summoning order dated 13.09.2022, holding that the learned Metropolitan Magistrate erred in taking cognizance without considering the delay or condoning it. The complaint was admitted to be filed beyond limitation without any formal condonation application.The Court remanded the matter to the trial court at the stage of taking cognizance to examine the reasons for delay and decide on condonation in accordance with law. The respondent was granted liberty to put forth grounds for condonation. The petition was partly allowed and disposed of accordingly.