Crl.M.C. No. 309/2010

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: March 21, 2011

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CRL.M.C. NO. 309/2010

B.DEY, DIRECTOR

M/S. SUNDSTRAND FORMS PVT. LTD. & ANR.

....PETITIONERS

Through: Mr. O.P.Khadaria, Advocate.

Versus

M/S. JAYSON INTERNATIONAL

.....RESPONDENT

Through: Mr.M.K.Verma, Advocate.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers

may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be

reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This is a petition under Section 482 CrPC seeking quashing of

the impugned order dated 12^th October, 2009 passed by the learned

M.M., Delhi, condoning the delay in filing of the complaint under

Section 138 N.I.Act and the consequent order dated 09^th November,

2009 issuing process against the petitioner for appearance and

undergoing trial under Section 138 N.I.Act.

2. Briefly stated, facts relevant for this petition are that the

respondent M/s. Jayson International, a partnership firm filed a

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complaint under Section 138 N.I.Act against the petitioners alleging

that petitioners had issued a cheque bearing No. 873026 for `

1,79,223/- dated 22^nd September, 2008 against the discharge of the

existing liability. The cheque when presented for collection was

dishonoured and it was returned with a memo of the bank with the

remarks “Fund Insufficient”. Respondent firm issued a notice of

demand under Section 138, N.I.Act to the petitioner and the

petitioner, despite of service of notice, failed to pay the demanded

cheque amount within the requisite period of 15 days from the date

of service. This led to the filing of the complaint.

3. The complaint, however was filed much later on 30^th April,

2009, after the expiry of one month from the date of failure of the

petitioner to pay the cheque amount within the requisite period.

The complaint was accompanied by an application for condonation

of delay wherein respondent explained the cause for delay in filing

of the complaint in Para 3 which is reproduced thus:

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4. Learned M.M. issued notice of application of condonation of

delay to the petitioners for hearing dated 12^th October, 2009. The

petitioners however failed to put in appearance till 12.15 p.m. on

12^th October, 2009 despite of the fact that the case was called

thrice. The learned M.M. therefore proceeded ex parte and

condoned the delay in filing the complaint by inter alia observing

thus:

5.

Learned counsel for the petitioners has submitted that the

impugned order of learned M.M. dated 12^th October, 2009 is bad in

law for the reason that it is a non-speaking order and it is passed

without considering if the delay has been sufficiently explained. It is

submitted that petitioner sent a response dated 12^th January, 2009

to the demand notice claiming that the goods supplied by the

respondent were of sub-standard and requested the respondent to

take back his goods. Learned counsel argued that the demand

notice was served on the petitioner on 05^th January, 2009, otherwise

also, reply to demand notice sent to the respondent is dated

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12.01.2009 from which, it is obvious that in any case the notice of

demand was received by the petitioners latest by 12^th January, 2009.

Even if the aforesaid date is taken as date of receipt of demand

notice by the petitioner, the petitioner was supposed to make

payment of the demanded amount by 27^th January, 2009 and in

view of the alleged failure of the petitioner to comply with the

demand notice, the respondent was required to file the complaint

under Section 138 N.I.Act within a period of one month i.e. latest by

27^th February, 20