HIGH COURT OF UTTARAKHAND AT NAINITAL

Delay Condonation Application No. 1310 of 2018

And

Special Leave to Appeal No. 92 of 2018

In

Criminal Appeal No. 208 of 2018

Gajendra Singh

......Appellant

Versus

State of Uttarakhand and others ….Respondents

Mr. Bhuwan Bhatt, Advocate for the appellant.

Mr. Siddharth Bisht, Brief Holder for the State.

Mr. Mohd. Azim, Advocate for the respondent no.2

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

The appellant has preferred an instant appeal against the

judgment of acquittal recorded in favour of respondent no.2, in

Complaint Case No. 200 of 2016, Gajendra Singh Vs. Neeraj

Bhandari, passed by the learned 4^th Additional Civil Judge (Junior

Division)/ Judicial Magistrate, 1^st Class, Dehradun ( for short “the

case”).

2.

Heard learned counsel for the parties through video

conferencing.

3.

The appeal has been filed with a delay of 366 days.

2

4.

Delay Condonation Application No. 1310 of 2018 has

been filed for condonation of delay in filing the appeal on the ground

the lawyer could get the certified copy in the year 2018 and when the

appellant contacted the lawyer in the High Court, he was told that

appeal has been prepared. There is no delay on the part of the

appellant. Learned counsel for the respondent no.2 has not seriously

opposed the delay condonation application.

5.

Having heard, this Court is of the view that reasons

assigned for condonation of delay are sufficient. Delay condonation

application is allowed. Delay in filing the appeal is condoned.

6.

Appellant has also filed application under Section 378 (4)

of the Code of Criminal Procedure, 1973 (for short “the Code”)

seeking leave to appeal.

7.

Acquittal has been recorded mainly on the ground that

before expiry of 15 days as given under Section 138 (c) of the

Negotiable Instruments Act, 1881 (for short “the Act”) complaint was

filed, which is not maintainable.

8.

Learned counsel for the respondent no.2 would submit

that a complaint can be filed only if the drawer of disputed cheque

fails to make the payment of the amount involved therein to the holder

in due course of the cheque within 15 days of the receipt of the said

notice. In this case, before expiry of 15 day from receipt of notice, the

complaint was filed.

9.

In the instant case, admittedly, demand notice under

Section 138 (b) of the Act was sent on 22.08.2013 and the complaint

was filed on 05.09.2013. Though, it is disputed, as to when, the notice

was received by the respondent no.2.

3

10.

According to respondent no.2, the notice was returned

after an endorsement having been made on it on 27.08.2013 that the

respondent no.2 was not available at his house.

11.

Without going into the controversy as to on which date,

notice was deemed sufficiently served upon the respondent, if from

the date of issuance of notice under Section 138 (b) of the Act, which

is 22.08.2013, fifteen days is counted, 05.09.2013 is 14^th day.

12.

How to calculate the period is has been settled by the

Hon’ble Supreme Court in the case of Econ Antri Limited Vs. Rom

Industries Limited and another, (2014) 11 SCC 769 and after having

discussed all the relevant laws on this point, in para 42 of it, Hon’ble

Court laid down the law as hereunder:-

“42. Having considered the question of law involved in this case in

proper perspective, in the light of relevant judgments, we are of the

opinion that Saketh¹ lays down the correct proposition of law. We hold

that for the purpose of calculating the period of one month, which is

prescribed under Section 142 (b) of the NI Act, the period has to be

reckoned by excluding the date on which the cause of action arose. We

hold that SIL Import, USA² does not lay down the correct law. Needless to

say that an