The main legal point established in the judgment is that a complaint under Section 138 of the Negotiable Instrument Act can be considered as an 'application', and the delay in filing the complaint can be condoned under Section 5 of the Limitation Act. The judgment also emphasized the impact of the 2002 amendment to the Negotiable Instrument Act, which allowed for the extension of the period of limitation and condonation of delay.

Sanjay Kumar Singh, J.

Heard Sri Gaurav Kakkar, learned counsel for the petitioner, Sri Ankit Saran, learned counsel for the opposite party no.2 and learned Additional Government Advocate on behalf of the State and perused the record with the assistance of learned counsel for the parties.

2. This writ petition has been filed by the petitioner to quash the impugned order dated 28.07.2011 passed by A.C.J.M., Court No.2, Bulandshahar (Annexure No.8 to the writ petition) and the order dated 04.05.2012 passed by Additional District & Session Judge, Court No.17, Bulandshahar (Annexure No.10 to the writ petition).

Basic facts

3. The facts of the case in nutshell are that as per case of the complainant, the respondent no.2 on persuasion of the petitioner started work of real-estate alongwith petitioner in his partnership. The petitioner taking the respondent no.2 in his confidence had taken an amount of rupees twenty five lacs from him. Later on, getting benefits in the said business, the petitioner ousted the respondent no.2 with dishonest intention from the aforesaid business of real-estate without giving amount to the share of the respondent no.2. Subsequently, on the intervention of well-wishers of the parties concerned, the petitioner readily agreed to settle the issue and accordingly, the petitioner agreed to pay an amount of rupees thirty lacs only to the respondent no.2 in six installments of rupees five lacs each. In the said background of fact, the petitioner gave a Cheque No.443977 dated 15.11.2009 of rupees five lacs only of ICICI Bank of his Account No.003101561164 to the respondent no.2. On presenting the aforesaid cheque before the concerned ICICI Bank Ltd., it was dishonoured and ICICI bank issued a memo dated 04.05.2010 stating the reason as "fund insufficient." The xerox copy of Cheque No.443977 dated 15.11.2009 and memo dated 04.05.2010 issued by ICICI bank appended as Annexure nos.2 and 3 to the writ petition. It is the case of the respondent no.2/complainant that he informed about the aforesaid dishonour of cheque to the petitioner on phone and also requested to make payment of aforesaid cheque amount, on which assurance was given by the petitioner to issue another cheque or draft to the respondent no.2 within two weeks but the petitioner did not fulfill his promise. Under the given circumstances, the complainant/respondent no.2 sent a notice dated 20.05.2010 through registered post to the petitioner requesting therein to pay total amount of rupees forty seven lacs and five thousand, out of which rupees three lacs towards physical loss, rupees ten lacs towards financial loss, rupees four lacs towards mental loss, rupees thirty lacs, which was due upon the petitioner and payable by the petitioner and rupees five thousand towards notice expenses within fifteen days. The said notice dated 20.05.2010 was served upon the petitioner on 25.05.2010 but petitioner did not pay the due amount to the respondent no.2.

4. It is also the case of the complainant that the petitioner after receiving the notice dated 25.05.2010 was in touch with the respondent no.2/complainant and false assurance was being given by the petitioner to pay the entire amount of the respondent no.2 adopting different modus operandi, but when the petitioner finally refused to pay the said amount, the respondent no.2/complainant having no option left filed a complaint alongwith affidavit on 22.09.2010 (though complaint and affidavit were prepared on 07.06.2010) under section 138 Negotiable Instrument Act against the petitioner registered as Complaint Case No.2856 of 2010 before IInd Additional Chief Judicial Magistrate, Bulandshahar on 22.09.2010. Since the complaint was barred by limitation, therefore, the complainant also filed an application under Section 5 (Paper No.11A) of the Limitation Act alongwith affidavit dated 22.09.2010 explaining the reason of delay in filing the complaint.

5. On the aforesaid complaint of the complainant /respondent no.2