TaxTMI 
TaxTMI 
2022 (4) TMI 874
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....ty to the said loan amount in favour of the complainant. On presentation of those cheques, the same were dishonoured with an endorsement as 'funds insufficient'. Hence, the legal notice was issued on 03.02.2017 calling upon the accused to make payment of the dishonoured cheques amount and the said notice was duly served on the accused and inspite of service of notice, the accused had not complied with the same. Hence, the complaint was filed and cognizance was taken and the petitioners were secured and they did not plead guilty. Hence, the complainant examined himself as PW1 and got marked the documents at Ex.P1 to P60 and the accused not led any defence evidence. The Trial Court after considering both the oral and documentary evidence, convicted the petitioners herein. Hence, an appeal was preferred before the Appellate Court in Crl.A.No.2458/2019 wherein, the contention was taken that the complaint is barred by limitation and there is no application filed before the Trial Court and very initiation of the proceeding against the petitioners is erroneous and the Court also failed to take note of the material on record and committed an error in convicting the petitioners. The....
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....se. The same cannot be applied as general preposition of law. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. 6. The counsel for the petitioners also relied upon the judgment of the Apex Court in the case of INDIAN BANK v. ABS MARINE PRODUCTS PRIVATE LIMITED passed in APPEAL (CIVIL) No.10074-10075/2013 DATED 18.04.2006 and brought to notice of this Court on paragraph 21 wherein it is held that any direction issued in exercise of power under Article 142 to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by this Court under Article 141. It is pointed out that other courts do not have the power similar to that conferred on this Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. 7. The counsel for the petitioners also relied upon the unreported judgment of this Court in Crl.A.No.186/2007 dated 23.03.2010 between SRI T.S.MURALIDHAR v. SRI H NARAYANA SINGH wherein an observation is made that the learned Magistrate had no jurisd....
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....assed for the offence punishable under Section 138 of N.I.Act by the Trial Court. 13. The learned counsel for the respondent in his argument he vehemently contend that an application was filed before the District and Sessions Court in criminal appeal, since for the first time, the petitioner had raised the objection with regard to the delay in filing the complaint. Hence, the Appellate Court considering the said application comes to the conclusion that deciding such an application is within the exclusive domain of the Magistrate to exercise his discretion to condone the delay and not the Appellate Court and also comes to the conclusion that the Appellate Court cannot usurp the jurisdiction of the Trial Court. Hence, directed the complainant to prefer an application under Section 142(b) of the N.I. Act before the Trial Court and the Trial Court after taking objections from the petitioners herein shall decide the application first and then proceed in accordance with law. Hence, this Court cannot find fault with the order passed by the Appellate Court in Crl.A.No.2458/2019. The learned counsel submits that the Appellate Court in paragraph No.12 has observed that for the first time, i....
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....re, it is expected of all the Trial Courts dealing with offence punishable under Section 138 of the N.I. Act to direct the office to put-up a specific note about the delay, if any, in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process, the Judge to specifically indicate that there is no delay in filing the complaint. 16. The learned counsel also relied upon the judgment of the Madras High Court in the case of A. RAHAMATHULLAH @ MAULANA v. P.A.K. MANOHRAN reported in 2015 (1) MWN (Cr.) DDC 75 (Mad.), wherein it is discussed with regard to introduction of provision as to condonation of delay in filing the complaint wherein the matter was remanded to the lower Court with liberty to the complainant to file an application for condonation of delay showing sufficient cause. 17. The learned counsel also relied upon the decision of the Division Bench of this Court in the case of STATE OF KARNATAKA v. NAGAPPA dated 28.06.1985 passed in C.R.P.No.3947/1984, wherein it is held that filing of application for condonation of delay with time barred appeal mandatory. Does not attract penalty of dismissal of app....
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.... delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. The said aspect also has been discussed by the Appellate Court in paragraph No.12 that for the first time in the appeal memo, the issue of delay has been raised. The Appellate Court in paragraph No.13 discussed that the accused nowhere contested the matter on the pretext of delayed complaint. It is observed that he participated in the proceedings on merits and he has waived off the right to claim that the complaint was delayed. However, for the first time, the issue of delay is raised before the Appellate Court. The Appellate Court also relied upon the judgment of the Apex Court in the case of Pawan Kumar Ralli's (supra) and observed that even the judgment of this Court in the case of Marutirao Hosamani has held that T.S.Muralidhar's case cannot stand in view of the Apex Court's pronouncement. Having considered those judgments, allowed the appeal and set aside the order and remanded the matter to the Trial Court. 21. The main contention of the learned counsel for the petitioners before this Court is that the said judgment is not applicable since the App....
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.... 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. 23. I have already pointed out that if a defence was taken before the Trial Court that there was a delay and if the complainant has not filed any application after raising the said issue before the Trial Court, then the very contention of the petitioners in this case can be accepted, but no such contention was taken. No doubt, the Apex Court in the case of Pawan Kumar Ralli (supra), made an observation that by making the said observation the Supreme Court was not laying down a legal proposition that without even filing an application for condonation of delay at initial stage, the complainant can be given an opportunity in respect thereof at any stage of the proceedings. But the fact is that when the issue of limitation is raised before the Appellate Court, immediately the complainant has filed an ap....