Case Note & Summary
The petitioner, Anil Prabhakar Naik, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondents for dishonour of a cheque. The complaint was dismissed for default. The petitioner filed Criminal Application No. 2086 of 1999 seeking restoration. The High Court, by order dated 14.2.2000, allowed the writ petition and restored the complaint subject to the condition that the respondent No.1 deposit a sum of Rs. 1,50,000 within a specified period. The respondent No.1 failed to deposit the amount. The petitioner then filed the present application (Criminal Misc. Application No. 1481 of 2003) seeking directions to restore the complaint to its original number. The court heard the parties and noted that the condition was imposed for the benefit of the respondent, and non-compliance by the respondent entitled the petitioner to restoration. The court allowed the application, setting aside the earlier order of dismissal and directing restoration of the complaint to its original number. The court also directed that the complaint be heard and decided expeditiously.
Headnote
A) Criminal Procedure Code - Restoration of Complaint - Conditional Order - Non-compliance - The petitioner's complaint under Section 138 of the Negotiable Instruments Act, 1881 was dismissed for default and later restored by the High Court subject to the condition that the respondent deposit a certain amount. The respondent failed to deposit the amount. The High Court held that the condition was for the benefit of the respondent and non-compliance by the respondent entitled the petitioner to restoration of the complaint. The court allowed the application and directed restoration of the complaint to its original number. (Paras 1-6)
B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Restoration of Complaint - The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, which was dismissed for default. The High Court restored the complaint subject to the condition that the respondent deposit a sum of Rs. 1,50,000. The respondent failed to deposit the amount. The court held that the condition was not complied with by the respondent, and therefore the petitioner was entitled to have the complaint restored. (Paras 1-6)
Issue of Consideration
Whether the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, which was dismissed for default and subsequently restored subject to a condition, can be revived when the condition is not complied with by the opposite party.
Final Decision
The court allowed the application, set aside the order of dismissal of the complaint, and directed that the complaint be restored to its original number. The court further directed that the complaint be heard and decided expeditiously.
Law Points
- Restoration of complaint
- Conditional order
- Non-compliance
- Section 138 Negotiable Instruments Act
- 1881
- Section 482 CrPC
- Inherent powers
Case Details
2006 LawText (BOM) (05) 29
Criminal Misc. Application No. 1481 of 2003 in Criminal Application No. 2086 of 1999 in Criminal Writ Petition No. 245 of 1993
Mr. Rafique Dada, Senior Counsel with Smt. Mohana Nair for the Petitioner; Mr. H. H. Ponda with Ranjit Shetty for the Respondent No.1; Mr. A. R. Patil APP for the Respondents - State
Chandrakant B. Garware, Vasudev Sabaji Shringare, Senior Inspector of Police, General Branch, CID Mumbai, State of Maharashtra
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Nature of Litigation
Criminal miscellaneous application seeking restoration of a complaint under Section 138 of the Negotiable Instruments Act, 1881 which was dismissed for default and later restored subject to a condition that was not complied with.
Remedy Sought
The petitioner sought directions to restore the criminal complaint to its original number and to proceed with the complaint.
Filing Reason
The respondent failed to comply with the condition imposed by the High Court while restoring the complaint, i.e., deposit of Rs. 1,50,000.
Previous Decisions
The complaint was dismissed for default. The High Court by order dated 14.2.2000 allowed the writ petition and restored the complaint subject to the condition that respondent No.1 deposit Rs. 1,50,000. The respondent failed to deposit the amount.
Issues
Whether the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 should be restored to its original number when the respondent failed to comply with the condition imposed by the court for restoration.
Submissions/Arguments
The petitioner argued that the condition for restoration was imposed for the benefit of the respondent, and since the respondent failed to comply, the petitioner is entitled to restoration.
The respondent contended that the condition was not complied with, but the court found that non-compliance by the respondent entitled the petitioner to restoration.
Ratio Decidendi
When a court restores a complaint subject to a condition imposed for the benefit of the opposite party, and that party fails to comply with the condition, the party seeking restoration is entitled to have the complaint restored without further delay.
Judgment Excerpts
The condition was imposed for the benefit of the respondent. The respondent did not comply with the condition. Therefore, the petitioner is entitled to have the complaint restored.
In the result, the application is allowed. The order of dismissal of the complaint is set aside. The complaint is restored to its original number.
Procedural History
The original complaint under Section 138 of the Negotiable Instruments Act, 1881 was dismissed for default. The petitioner filed Criminal Application No. 2086 of 1999 for restoration. The High Court by order dated 14.2.2000 allowed the writ petition and restored the complaint subject to the condition that respondent No.1 deposit Rs. 1,50,000. The respondent failed to deposit the amount. The petitioner then filed Criminal Misc. Application No. 1481 of 2003 seeking directions to restore the complaint. The present judgment was delivered on 4.5.2006.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973 (CrPC): 482, 439
- Constitution of India: Article 226, Article 227
