Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2023 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 462 - HC - Indian LawsDishonour of Cheque - complainant filed the complaint on the basis of notice posted on second occasion - complaint dismissed on the ground of being time barred - opportunity to the complainant to explain delay occurred or not - HELD THAT:- The Hon’ble Supreme Court in case of BIRENDRA PRASAD SAH VERSUS THE STATE OF BIHAR AND ORS. [2019 (5) TMI 1912 - SUPREME COURT] dealt with similar situation. When the notice is sent on first occasion and when no service proof is available and when notice is posted on second occasion, what should be the approach of the trial Court is discussed and it was held that The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the Appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. The observation in case Birendra Prasad Sah will be applicable except with one modification. There was no prayer for condonation of delay in present complaint. But foundation is there. Complainant has pleaded why notice was sent by U.P.C. During evidence, he has also produced the envelopes which were unclaimed. This Court feels that the litigant should not suffer for want of necessary prayers for condonation of delay. The prosecution under Negotiable Instruments Act is quasi civil. The appellant needs to be given an opportunity to pray for condonation of delay. This Court has not given any findings on other issues. At the same point, the complainant needs to be saddled with cost of Rs.5,000/- If the delay is condoned there is no need to adduce fresh evidence - appeal allowed.
|