IMPORTANT POINT
When the issue of imitation under section 138, NI Act was raised for the first time before the High Court in proceeding u/s 482, CrPC, the High Court should have decided it on merit.

Judgment :

N.V. RAMANA, J.

Leave granted.

2. This appeal arises out of the judgment and order dated 15th January, 2013 of the High Court of Delhi passed in Criminal Miscellaneous Case No. 2961 of 2012 filed by the respondent herein under Section 482 of the Criminal Procedure Code. By the said judgment, the High Court quashed the criminal proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) against the respondent.

3. The brief history of the case, according to the appellant, is that he had given a loan of Rs.60 lakhs to the respondent in the month of November, 2011. In discharge of his obligation to the appellant, on 25th April, 2012, the respondent issued (i) Cheque No. 889953, drawn on Allahabad Bank, for Rs.30 lakhs; (ii) Cheque No. 545420, drawn on ICICI Bank, for Rs.20 lakhs; and (iii) Cheque No. 545409, drawn on ICICI Bank, for Rs. 10 lakhs. When the appellant presented the said cheques in his Bank for realization, they were dishonoured by the respondent’s banker with remarks ‘Stop Payment’.

4. The appellant, after receiving the communication from his banker about the dishonour of Cheques, issued a handwritten notice (Annexure P4) to the respondent on 27th April, 2012 calling upon him to make the payment. Upon non-compliance by the respondent, a formal legal notice dated 24th May, 2012 (Annexpure P5) was issued under Section 138/142 of the Act requiring the respondent to pay the cheques amount along with interest and costs. In his reply to the legal notice, the respondent totally disagreed with the allegation of taking loan from the appellant. Subsequently, the appellant filed a Complaint Case against the respondent invoking Sections 138, 141 and 142 of the Act and Section 420, of the Indian Penal Code. The Metropolitan Magistrate took cognizance and summoned the respondent who pleaded not guilty and claimed to be tried.

5. During the pendency of trial, the respondent filed Criminal Miscellaneous Case before the High Court under Section 482, Cr.P.C. for quashing of criminal proceedings pending before the Trial Court. The High Court expressed the view that the complaint was not filed within a period of one month after the expiry of 15 days of receipt of the notice dated 27th April, 2012 and hence it was barred by limitation under Section 142(b) of the Act and by the impugned judgment quashed the criminal proceedings against the respondent. Aggrieved by the order of the High Court, the appellant-complainant approached this Court by way of Special Leave Petition.

6. Before us, the case of the appellant is that the High Court was not justified in exercising extra ordinary jurisdiction under Section 482, Cr.P.C. The High Court incorrectly considered the handwritten note as legal notice and calculated the limitation period accordingly. Whereas, the handwritten note was only an intimation to the accused and according to the provisions of law, the actual notice within 30 days from the date of dishonour of the cheques, was issued on 24th May, 2012 and accordingly criminal proceedings were initiated well within the limitation period. But, the High Court failed to take into consideration this material fact and merely on the ground of 25 days delay from the date of service of handwritten note, quashed the criminal proceedings. The High Court ignored the fact that the Act clearly enables the Court to condone the delay, if any, beyond 30 days of limitation period under proviso to Section 142(b) of the Act.

7. During the course of hearing, we felt it justifiable to have assistance of a senior counsel and we accordingly appointed Mr. Huzefa Ahmadi, learned senior counsel as Amicus Curiae.

8. Learned Amicus submitted that the handwritten note dated 27th April, 2012 whereby the appellant called upon the respondent to make payment, would fall within the four corners of ‘notice’ under Section 138(b) of the Act and there was a delay of 25 days in filing the Com