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2022 (4) TMI 874 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - delay of 7 days in filing the complaint - time limitation - Whether the Appellate Court has committed an error in setting aside the order and remanding the matter to the Trial Court to consider the delay and whether it requires interference of this Court? - HELD THAT:- The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I. Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. It has to be noted that in the case on hand also this is a peculiar facts and circumstances of the case and no such contention was taken before the Trial Court by the petitioners and if they had raised the issue of delay before the Trial Court, the complainant ought to have been given an opportunity to make necessary application to condone the delay and admittedly for the first time, the issue has been raised before the Appellate Court. Only on the ground that there is a delay, the complaint of the complainant cannot be thrown to the dustbin - It is important to note that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration. The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court and hence the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application. The original complaint is of the year 2016 and already six years have been elapsed. Hence, the Trial Court is directed to dispose of the matter within one year from today - petition dismissed.
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