9911796707
TMI Blog2023 (8) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence respondent was acquitted. It is the complainant who has preferred this Appeal. The parties will be referred in their original status. 2. The complainant sent first notice on 31st March, 2006 to two accused. Accused No. 1 is a firm and accused No. 2 is partner. It was sent by R.P.A.D. Acknowledgment was not received. Hence complainant posted the notice dated 31 st March, 2006 again to accused No. 1 and accused No. 2 on 16th April, 2006 and on 21st April, 2006 respectively. As there was failure to pay by both the accused, the complaint was filed on 5th June, 2003. The complaint was filed by considering cause of action arisen on the basis of notice posted on second occasion. Trial Court observed that there was delay of four days in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed by the trial Court. He also filed on record summary of those dates. 6. The complainant examined himself and representative each from the bank of accused and the complainant. It is important to note that when complaint was filed, complainant pleaded:- "both the accused did not claim the notices and both the Registered A.D.'s were returned to my advocate with a remark as not claimed. Hence he reissued the notice to accused No. 1 and 2 on 16th April, 2003 and 21st April, 2003 through under posted certificate." When he gave evidence, he deposed as : "..... both the accused did not claim the notice and both the RPAD were returned to my advocate with remark as not claimed". 7. On this evidence trial Court observed:- "The en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make payment Roughly 06/05/2003 Roughly 30/04/2003 Complainant ought to be filed No observation From 01/05/2003 upto 01/06/2003 as per trial Court Complainant filed on 05/06/2003 05/06/2003 9. According to Mr. Limaye, if the dates for accused No. 1 firm are considered, cause of action arose on 06/05/2003 and from that date the complaint is filed in time. If we see the record, we may find that the complaint was filed on the basis of posting of notice on second occasion. The evidence of service of notice posted first by way of R.P.A.D. was not available. But at the time of evidence, these envelopes were very much available and they were tendered in evidence. On this background the complainant ought to have taken some stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "Both in Paras 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6-4-2018. However, if Paras 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint." In that case there was delay in filing complaint. It was calculated from second notice. Condonation was not asked from the first notice. About the order of High Court, it was observed:- "The High Court has merely adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eckoning the period of 15 days contemplated in clause (c) to the provision of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption." In this case also the R.P.A.D. envelopes returned back with remark 'unclaimed'. The facts are similar. Through the observations on the point of territoriality were set aside subsequently, above observations still holds good. 15. The prosecution under Negotiable Instruments Act is quasi civil. The appellant needs to be given an opportunity to pray for condonat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
