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2010(2) Bankmann 494 (Ori.)
ORISSA HIGH COURT
S.K. Mishra, J.
Orissa Rural Housing and Development Corporation Ltd. —Petitioner
versus
Raj Kishore Joshi —Opp. Party
Criminal Revision Nos. 977 and 978 of 2006
Decided on 4.12.2009
For the Petitioner:Mr. A.K. Hota, and Mr. S.K. Garia, Advocates.
For the Opp. Party:Mr. A.K. Mohapatra, Mr. N.C. Rout, Mr. S.K. Padhi, Mr. J.K. Behera and Mr. A.K. Mohapatra, Advocates.
IMPORTANT POINT
There is no presumption that delay is occasioned deliberately.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 142(b)—Limitation Act, 1963—Section 5—Dishonour of cheque—Rejection of petition for condonation of delay in filing complaint—Cheque was dishonoured due to stop payment and insufficiency of funds—For computing period of 15 days, in the day on which notice was served on accused has to be excluded—In this case cause of action as envisaged under Section 138(c) arises on 30.1.2006—Complaint should have been filed on or before 2.3.2006—But complaint has been filed after delay of 21 days—Pedantic approach should not be adopted and doctrine Every day’ delay must be explained must be applied in a rational common sense pragmatic manner—Transaction on which opposite party is involved is under investigation by Vigilance Department—Principle applicable to State is also applicable to such State owned Corporations—Trial Court committed gross illegality by not considering matter of commission of delay in its proper perspective—Impugned order set aside—Magistrate directed to take up the cases on merit. (Paras 3, 6, 9 and 10)
(1987) 2 SCC 107; (2005) 3 SCC 752—Relied on.
2006(Supp. II) OLR 724; 2007 CLR 8; 2007 (Suppl I) OLR 792—Referred to.
(ii) Limitation Act, 1963—Section 5—Condonation of delay—When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for other side cannot claim to have vested right in injustice being done because of a non-deliberate delay—There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fide. (Para 6)
S.K. Mishra, J.—On consent of learned counsel for both the parties, the criminal revisions are taken up for disposal at the stage of admission.
2. In these Criminal Revisions, petitioners assail the orders passed by the learned S.D.J.M., Bhubaneswar on 25.8.2006 in I.C.C. No.901 of 2006 and in I.C.C. No.902 of 2006, whereby he rejected the petition filed by the complainant to condone the delay in filing the complaint case under Section 5 of the Limitation Act, hereinafter referred to as “the Limitation Act”, read with Section 142 (b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”).
3. Brief fact of the case of the complainant/petitioner is that Orissa Rural Housing and Development Corporation Ltd. had advanced the house-building loan to the accused/opposite party. There was an outstanding dues against the accused, for which he issued two account payee cheques of Rs. 9,40,000 each, on 28.10.2005 in favour of the complainant Company drawn on Bank of Baroda, Bhubaneswar. The said cheque was presented before the Syndicate Bank, ORHDC Extension Counter, Bhubaneswar for collection, but the complaint was intimated that the cheque has been dishonoured due to ‘stop payment’ and insufficiency of funds. Thereafter, the complainant on 4/5.1.2006 sent two demand notices to the accused in his address. The notices were received by the accused on 21.1.2006 and 14.1.2006 respectively, but the accused did not pay the amount due within 15 days of the receipt of the notice. Thereafter, the complainant initiated a complaint case on 23.3.2006.
The complainant filed applications under Section 142(b) of the Act read with Section 5 of the Limitation Act. In such petitions, the complainants averred that due to official process and as an investigation was made by the Vigilance Department in the Orissa Rural Housing Development Corporation Ltd. there has been delay of 7 and 18 days respectively in filing these present complaints. The complainant further averred that the delay was not intentional. Hence, the delay be condoned, otherwise it will cause irreparable loss to the financial institution. The petitioners were annexed with affidavits of the Assistant Accounts Officer of the Corporation.
4. Learned S.D.J.M., Bhubaneswar, in the impugned orders held that no documents have been filed to believe the plea taken by the complainant. Hence, he rejected the petition for condonation of delay. Such order of refusing to condone the delay has been challenged in this Revision Application. In the Revision Applications, the Corporation has filed two letters dated 25.10.2005 and 27.10.2005 indicating that vigilance enquiry was going on regarding sanction of Rs. 51,35,000 in favour of M/s Duro Wires Pvt. Ltd.
5. In course of hearing of the application, learned counsel for the petitioners submits that a pragmatic approach should be adopted to condone the delay, whereas learned counsel for the opposite party very emphatically submitted that absolutely no ground has been made out for condoning the delay in this case. Hence, he submitted that the revision application should be dismissed.
6. Section 138 of the Act provides for penalty for dishonour of cheque for insufficiency, etc. of funds in the account of the drawer. In Clause (a) to the proviso of the section, it is provided that nothing contained in that section shall apply unless the cheque has been presented to the Bank within a period of six months from the date, on which it was drawn or within the period of its validity, whichever is earlier. In Clause (b) of the said proviso, it is further provided that Section 138 of the Act shall not be attracted unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within 30 days of receipt of information by him from the bank regarding the return of the cheque as unpaid. Clause (c) provides that
