The court upheld the discretion to condone a significant delay in filing a complaint under Section 138 of the Negotiable Instruments Act, emphasizing the sufficiency of cause over the length of delay.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally.

2. The Petitioner assails the legality, propriety and correctness of an order dated 20 December 2022, passed by the learned Additional Sessions Judge (Borivali Division), Mumbai in Criminal Revision Application No.63 of 2021, whereby the Revision preferred by the Petitioner came to be dismissed, affirming the order dated 22 January 2021, passed by the learned Metropolitan Magistrate, 43rd Court, Borivali, in CC 261/Misc/2020, condoning the delay of 1259 days in filing the complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act, 1881).

3. Shorn of unnecessary details, the background facts can be stated as under :

3.1 For the sake of convenience and clarity, the parties are referred to in the capacity in which they are arrayed before the learned Magistrate.

3.2 The complainant-Respondent No.2 claimed to have rendered certain consultancy services to the accused-Petitioner, who runs M/s. Chetak Construction Company and other entities. The consultancy charges were overdue. A purported settlement was arrived at between the complainant and the accused. The accused had drawn cheques bearing Nos.411196 and 491942 dated 5 October 2016 and 22 December 2016 in the sum of Rs.10,00,000/- and Rs.11,50,000/- respectively, towards the full and final settlement of the claim of the complainant.

3.3 Both the cheques were, however, dishonoured on presentment. On 19 January 2017, the complainant addressed a demand notice calling upon the accused to pay the amount covered by the dishonoured cheques. The complainant asserts, the accused addressed a letter dated 1 March 2017 acknowledging the liability, and also assured to pay the due amount by 31 March 2017. In the event of default, the accused offered to pay interest @ Rs.30,000/- p.m. till the payment of the full amount. The accused requested the complainant not to further proceed with the notice under Section 138 of the Act.

3.4 The complainant asserts, the accused repetitively gave assurances and promises to pay the due amount. On 12 July 2019, a MOU was executed between the parties, whereunder also the accused acknowledged the liability and assured to pay an amount of Rs.20 Lakhs in five installments during 20 July 2019 to 5 September 2019. As the accused committed default, despite giving promises, the complainant filed a complaint under Section 138 of the Act, on 20 August 2020 along with an application for condonation of delay of 1259 days in filing the complaint.

3.5 A notice was issued to the accused. After appraisal of the application, reply thereto and the documents on record, the learned Metropolitan Magistrate was persuaded to condone the delay in filing the complaint, holding that the repeated assurances and representations made by the accused dissuaded the complainant from filing the complaint within the statutory period of limitation and that the same constituted a sufficient cause for not filing the complaint within the period prescribed under clause (b) of Section 142 of the Act, 1881.

3.6 Being aggrieved, the accused preferred a revision before the Court of Session. By the impugned judgment and order, the learned Additional Sessions Judge found no reason to interfere with the discretion exercised by the learned Metropolitan Magistrate. It was, inter alia, held that the complainant had ascribed justifiable reasons for condonation of delay and those reasons were borne out by the documents executed by the parties and the correspondence exchanged between them.

3.7 Being further aggrieved, the accused has invoked the writ jurisdiction.

4. I have heard Mr. Vinod S. Pandey, learned Counsel for the Petitioner and Mr. Yazad Udwadia, learned Counsel for Respondent No.2 at some length. With the assistance of the learned Counsel for the parties, I have also perused the pleadings and material on record.

5. Mr. Pandey took a slew of exceptions to the impugned or