9911796707
TMI Blog2015 (8) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Criminal Case No. 600/2007 in the case initiated by the respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, (for short 'the Act'), on filing the complaint before the learned JMFC Court. 4. The case of the complainant/respondent is that the petitioner herein is known to him very well and he had requested him to advance a hand-loan of Rs. 1.5 lakhs and he is said to have issued a cheque of Rs. 1.5 lakhs on 09.08.2000, drawn on Syndicate Bank, Deodurga Branch. The said cheque was presented for payment and it was returned with an endorsement "insufficient amount in the account of the holder" vide memo dated 22.10.2006. Later on, the petitioner got issued the legal notice on 28.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused is not at all sufficient to discharge this burden to the effect that he has not committed any offence is the finding of the trial Court. Therefore, the trial Court has come to the conclusion that the accused had received a sum of Rs. 1.5 lakhs from the complainant and the cheque marked as per Ex. P1 was issued for having received the said amount in discharge of the debt. Therefore, he is stated to have committed the offence punishable under Section 138 of the Act. 7. The First Appellate Court has also reassessed the entire evidence and has come to the conclusion that nothing useful has been elicited from the mouth of P.W. 1 to rebut the presumption available under Sections 138 and 139 of the Act. It is further held that the accused, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Vanka Radhamanohari Vs. Venka Venkata Reddy. The Hon'ble High Court of Madras has explained the basic difference between Section 5 of Limitation Act and Section 473 of the Criminal Procedure Code. What is held in the said decision is that in order to get the delay condoned under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of delay; whereas Section 473 of Cr.P.C. enjoins a duty on the Court to examine not only whether such delay has been explained but also to see as to whether it is the requirement of the justice to condone or ignore such delay. 11. Per contra, the learned counsel for the respondent has relied upon paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of a Metropolitan Magistrate or a Judicial Magistrate of the first class try any offence punishable under Section 138.] 13. In the present case, the complainant had filed an application under Section 5 of the Limitation Act supported by an affidavit sworn by him, explaining the reasons for the delay of five days in filing the complaint. This aspect of the matter, as argued by learned Counsel Sri.Ameet Kumar Deshpande, has not been considered by the trial Court. But, this aspect of limitation had been raised as one of the grounds before the First Appellate Court in the appeal filed under Section 374 of Cr.P.C. by the accused in Criminal Appeal No. 1/2014. 14. On perusal of the appeal memo filed in Criminal Appeal No. 1/2014, it is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the defect is technical and it cannot be cured at this stage and the matter will have to be quashed. After going through decision rendered in Pawan Kumar Ralli's case, it is seen that the power vested in the Apex Court under Article 142 of the Constitution of India was used to remand the matter to the trial Court in order to enable the complainant to file an application for condonation of delay. 17. In view of The decision rendered by the Hon'ble High Court of Madras in the case of A. Rahamathulla @ Maulana Vs. P.A.K. Manohran in Crl. O.P. No. 6944/2009, the proceedings will have to be quashed and the matter will have to be remanded to the trial Court for considering the application for Condonation of delay since the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Courts dealing with offence punishable under Section 138 of N.I. Act to direct the office to put-up a specific note about the delay, if any, in filing the complaint and whether any application is filed for condonation of delay. It is also expected that before issuing process, the judge to specifically indicate that there is no delay in filing the complaint. ORDER The petition is allowed and the proceedings initiated by the trial Court in Criminal Case. No. 600/2007 and consequent Criminal Appeal No. 1/2014 are quashed. The matter is remitted to the trial Court to pass appropriate orders on the application already filed for condonation for delay, at the earliest and to dispose of the matter on merits, preferably within three months from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
