Case Note & Summary
The petitioner, The Manmandir Co-op. Bank Ltd., filed two private complaints under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Tukaram Dattu Pawar, for dishonour of cheques amounting to over Rs.12 lakhs. There was a delay of two days in filing one complaint (Case No.127 of 2008) and four days in the other. The Bank filed applications for condonation of delay, supported by a medical certificate stating that the employee responsible for filing the case was sick and under treatment. The Judicial Magistrate First Class (JMFC) allowed the applications, condoned the delay, and imposed costs of Rs.200 in each case. The respondent challenged these orders in Criminal Revision Applications No.183/2009 and 184/2009 before the Additional Sessions Judge, Sangli. The Sessions Court allowed the revisions, setting aside the Magistrate's orders on the ground that the accused was not given sufficient opportunity to file a say and lead evidence. The Bank then filed the present criminal writ petitions before the Bombay High Court. The High Court noted that the provisions of Section 142 of the NI Act are similar to Section 5 of the Limitation Act, and condonation of delay is discretionary. The delay was minimal (2-4 days), the complainant was a bank, the cheque amount was substantial, and a medical certificate was produced. Both sides had filed pursis stating they did not want to lead oral evidence. The High Court held that the Sessions Court ought not to have interfered with the Magistrate's discretionary order when sufficient cause was shown. The impugned orders of the Sessions Court were set aside, and the Magistrate's orders condoning delay were restored. The writ petitions were allowed.
Headnote
A) Criminal Procedure - Condonation of Delay - Section 142 of Negotiable Instruments Act, 1881 - Discretion of Magistrate - The Magistrate condoned delay of 2-4 days in filing complaint under Section 138 NI Act, relying on medical certificate of bank's employee. The Sessions Court set aside the order on ground that accused was not given sufficient opportunity to file say and lead evidence. Held that the revisional court ought not to have interfered with the discretionary order of the Magistrate when sufficient cause was shown and both sides had filed pursis that they did not want to lead oral evidence. The order of the Sessions Court was set aside and that of the Magistrate restored. (Paras 1-5)
Issue of Consideration
Whether the Sessions Court was justified in setting aside the Magistrate's order condoning delay in filing complaint under Section 138 of Negotiable Instruments Act, 1881, on the ground that sufficient opportunity was not given to the accused.
Final Decision
The High Court allowed the writ petitions, set aside the orders of the Sessions Court, and restored the orders of the Magistrate condoning the delay subject to payment of costs.
Law Points
- Condonation of delay under Section 142 of Negotiable Instruments Act is discretionary
- sufficient cause required
- delay of few days condonable on medical grounds
- revisional court cannot interfere unless perversity or lack of opportunity
Case Details
2012 LawText (BOM) (07) 189
Criminal Writ Petition No.2410 of 2010 and Criminal Writ Petition No.2411 of 2010
Mr. Umesh Mankapure for Petitioner, Mr. Vaibhav Gaikwad i/b. Mr. A.M. Kulkarni for Respondent No.1, Mrs. A.T. Jhaveri APP for State
The Manmandir Co-op. Bank Ltd.
Shri. Tukaram Dattu Pawar, State of Maharashtra
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Nature of Litigation
Criminal writ petitions challenging the order of the Sessions Court setting aside the Magistrate's order condoning delay in filing complaints under Section 138 of the Negotiable Instruments Act.
Remedy Sought
The petitioner Bank sought restoration of the Magistrate's orders condoning delay and setting aside the Sessions Court's orders.
Filing Reason
The Bank filed complaints under Section 138 NI Act against the respondent for dishonour of cheques. There was a delay of 2-4 days in filing the complaints due to illness of the employee responsible for filing the case.
Previous Decisions
The Magistrate initially condoned the delay, but the Sessions Court set aside that order and remanded the matter. On remand, the Magistrate again condoned the delay, which was again set aside by the Sessions Court on the ground that the accused was not given sufficient opportunity.
Issues
Whether the Sessions Court was justified in interfering with the Magistrate's discretionary order condoning delay under Section 142 of the NI Act.
Whether sufficient cause was shown for condonation of delay of 2-4 days.
Submissions/Arguments
Petitioner argued that sufficient cause was shown by producing medical certificate and both sides had filed pursis that they did not want to lead oral evidence.
Respondent argued that sufficient opportunity was not given to file say and lead evidence.
Ratio Decidendi
The power to condone delay under Section 142 of the NI Act is discretionary and similar to Section 5 of the Limitation Act. When sufficient cause is shown, the Magistrate can condone the delay. The revisional court should not interfere with such discretionary order unless it is perverse or there is lack of opportunity. In this case, the delay was minimal, medical certificate was produced, and both sides had given up oral evidence, so the Sessions Court ought not to have set aside the order.
Judgment Excerpts
The provisions of Section 142 of the Negotiable Instrument Act are similar to the provisions of Section 5 of the Limitation Act.
The condonation of delay is within the discretion of the Court and when sufficient cause is shown and delay deserves to be condoned, the Court can condone the delay.
In the present matter, the delay of hardly four days was caused. The complainant is a bank and the cheque amount was more than Rs.12 lakhs. The medical certificate was produced.
Procedural History
The Bank filed complaints under Section 138 NI Act. The Magistrate condoned delay. The Sessions Court set aside the order and remanded. On remand, the Magistrate again condoned delay. The Sessions Court again set aside the order. The Bank filed the present writ petitions.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 142
- Limitation Act, 1963: 5
