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2015 Supreme(Mad) 3413
IN THE HIGH COURT OF MADRAS
B. Rajendran, J.
G. Venkatesan and Ors. - Appellants
Vs.
Kamala - Respondent
Criminal Revision Case No. 599 of 2010 and M.P. No. 1 of 2010
Decided On: 22.07.2015
Subject
Civil Law - Condonation of Delay
Act Referred
LIMITATION ACT : S.5
NEGOTIABLE INSTRUMENTS ACT : S.142(b)
Headnote
Negotiable Instruments Act - Section 138 - Criminal Procedure Code,1973 - Section 142 - Cognizance - Promised to repay amount - Criminal Revision Case challenging order passed in CMP in STC by learned Judicial Magistrate Salem - By said order trial Court dismissed application filed by petitioners under Section 142 of Criminal Procedure Code refusing to condone delay of days - According to petitioners husband of first petitioner has given a sum of amount respondent/accused as loan for meeting her urgent family expenditure - On receipt of loan amount respondent/accused promised to repay amount together with interest - Held, However contention of learned counsel for petitioner that if impugned order of learned Magistrate is set aside and liberty is given to respondent to file a petition to condone delay and even if delay is condoned learned Magistrate cannot take cognizance of complaint because that will amount to entertaining a Complaint on a second cause of action is untenable since there is absolutely no question of arising of a second cause of action in this case - In light of above decisions rendered by this Court and order passed by Honorable Supreme Court in Sarah Mathew vs. Institute of Cardio Vascular Diseases having regard to reasons assigned in the application for condo nation of delay to condone delay of days in filing complaint court hold that complainant has satisfactorily explained delay of days - Criminal Revision Case is allowed.
Advocate Appeared:
For the Appellants : P. Jagadeesan
For the Respondent: A. Nagarathinam
B. Rajendran, J.
1. The legal heirs of the deceased Venkatesan, who has filed the above S.T.C. No. 3 of 2008 under Section 138 of The Negotiable Instruments Act, have come forward with this Criminal Revision Case challenging the order dated 22.04.2010 passed in CMP No. 223 of 2010 in STC No. 3 of 2008 by the learned Judicial Magistrate No. III, Salem. By the said order dated 22.04.2010, the trial Court dismissed the application filed by the petitioners under Section 142 of Cr.P.C. refusing to condone the delay of 10 days. According to the petitioners, the husband of the first petitioner has given a sum of Rs. 70,000/- to the respondent/accused as loan for meeting her urgent family expenditure. On receipt of the loan amount, the respondent/accused promised to repay the amount together with interest. When the husband of the first petitioner demanded the repayment of the amount, the respondent/accused issued a cheque dated 18.08.2005 for a sum of Rs. 70,000/-. When the cheque was presented for encashment, it was dishonoured for want of funds on 23.08.2005. The husband of the first petitioner therefore sent a notice on 24.08.2005, which was received by the respondent/accused on 05.09.2005. On receipt of the notice, the accused/respondent sent a reply notice dated 26.09.2005 containing false and frivolous averments. Thereafter, the complainant viz., the husband of the first petitioner, filed the above said S.T.C. No. 3 of 2008 under Section 138 of the Negotiable Instruments Act. Pending the S.T.C. No. 3 of 2008, the husband of the first petitioner and also the complainant died on 12.07.2008. On his death, the petitioners were impleaded as legal heirs in S.T.C. No. 3 of 2008. During the course of trial, the power of attorney, representing the petitioners, examined himself as a witness on 11.12.2009 and he was cross-examined on 16.12.2009. When the complaint was posted for defence witnesses, the present petition has been filed under Section 142(b) of The Negotiable Instruments Act to condone the delay of 10 days in filing the complaint.
2. The learned counsel for the petitioner would contend that only at the time of trial in the complaint, it came to light that there was a delay of 10 days in filing the complaint. Even during the cross-examination, the power agent representing the petitioners have given reasons for not filing the complaint in time. Even the Court below has entertained the complaint and the trial in the complaint has commenced. Therefore, only to cure the defect, the present petition has been filed. In any event, adequate reasons have been assigned in the petition filed under Section 142 of The Negotiable Instruments Act for the delay in filing the complaint. The delay is not huge or unexplained and therefore, the Court below ought to have allowed the application as prayed for.
3. On the contrary, the learned counsel for the respondent would contend that the application under Section 142 of The Negotiable Instrument Act has been filed without a petition supporting the affidavit. The present petition has been filed to fill up the lacuna. The complaint was filed in the year 2008 and after lapse of two years, the present application has been filed that too after cross-examination of the witnesses. The trial Court has assigned valid reasons for not entertaining the application for condone the delay of 10 days and therefore he prayed for dismissal of the Criminal Revision Case.
4. I heard the counsel for both sides, perused the order passed by the Trial Court and other material records placed. No doubt, at the time when the complaint under Section138 of The Negotiable Instruments Act was filed by the husband of the first petitioner, it was not accompanied by any petition for condonation of delay. The trial Court also entertained the complaint filed by the husband of the first petitioner, without taking note of the delay in filing the complaint. Further, the trial Court also taken cognizance of the complaint. However, on
