TMI Blog2024 (3) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ial transactions by making the accused to honour the negotiable instrument and pay the amount for which such instrument had been drawn. The object of provisions contained in Chapter XVII has thus been described as both punitive and compensatory. The Supreme Court in P. MOHANRAJ ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [ 2021 (3) TMI 94 - SUPREME COURT] delved into the question as to whether the proceedings under Section 138 of the Act, are quasi criminal in nature. In paragraph No. 84 of the said judgment, the Supreme Court concluded that given the hybrid nature of a civil contempt proceeding, described as quasi-criminal by several judgments of the Supreme Court, there was nothing wrong with the same appellation quasi-criminal being applied to Section 138 proceeding for the reasons given by the Supreme Court on an analysis of Chapter XVII of the Act, 1888. Another three Judge Bench of the Supreme Court again had an occasion to consider the nature of the proceedings under Chapter XVII of the Act, 1888 in the case of M/S GIMPEX PRIVATE LIMITED VERSUS MANOJ GOEL [ 2021 (10) TMI 378 - SUPREME COURT] . The Supreme Court observed that the nature of the offence under Section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, heard finally. 2. The Petitioner assails the legality, propriety and correctness of an order dated 20 December 2022, passed by the learned Additional Sessions Judge (Borivali Division), Mumbai in Criminal Revision Application No. 63 of 2021, whereby the Revision preferred by the Petitioner came to be dismissed, affirming the order dated 22 January 2021, passed by the learned Metropolitan Magistrate, 43rd Court, Borivali, in CC 261/Misc/2020, condoning the delay of 1259 days in filing the complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act, 1881). 3. Shorn of unnecessary details, the background facts can be stated as under : 3.1 For the sake of convenience and clarity, the parties are referred to in the capacity in which they are arrayed before the learned Magistrate. 3.2 The complainant-Respondent No. 2 claimed to have rendered certain consultancy services to the accused-Petitioner, who runs M/s. Chetak Construction Company and other entities. The consultancy charges were overdue. A purported settlement was arrived at between the complainant and the accused. The accused had drawn cheques bearing Nos. 411196 and 491942 dated 5 Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction. 4. I have heard Mr. Vinod S. Pandey, learned Counsel for the Petitioner and Mr. Yazad Udwadia, learned Counsel for Respondent No. 2 at some length. With the assistance of the learned Counsel for the parties, I have also perused the pleadings and material on record. 5. Mr. Pandey took a slew of exceptions to the impugned orders. Firstly, it was submitted that the learned Additional Sessions Judge as well as the learned Metropolitan Magistrate lost sight of the fact that there was a huge delay of 1259 days, which was both inordinate and unexplained. Secondly, the courts also lost sight of the fact that the matter of condonation of delay arose in respect of a criminal prosecution. A liberal approach which may be justifiable in civil proceedings cannot be adopted in a prosecution for an offence under Section 138 of the Act, 1881, as penal consequences ensue. Thirdly, in the facts of the case, according to Mr. Pandey, the reasons ascribed by the complainant that on account of the assurances allegedly made by the accused, he did not lodge the complaint within the stipulated time, cannot be said to be factually sustainable and thus, cannot a constitute sufficient cause for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Additional Sessions Judge found no fault with the aforesaid approach of the learned Magistrate. 11. First and foremost, the approach expected of this Court when the Courts below have exercised discretion positively; to condone the delay. The principles which govern the matter of condonation of delay in preferring the application/appeal are well recognized. It is not the length of delay, but the sufficiency of the cause that is of critical salience. If the cause ascribed by the party is found to be sufficient, the length of time pales in significance. It is also trite that the courts should adopt a liberal approach in considering the prayer for condonation of delay, as the adjudication of the matter on merits rather than on technicalities promotes the cause of justice. Ordinarily, courts lean in favour of condonation of delay, in the absence of willful negligence or want of bonafides. The prescription of period of limitation is, thus, not premised on the destroying rights of the parties but as a bar to the remedy, as an indefinite period to enforce such remedy is fraught with the consequence of uncertainty and absence of finality to the prospect of litigation. 12. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent situations in not because on the expiry of such time a bad cause would transform into a good cause. 11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a given case, like the one at hand, even the acts or conduct attributed to the accused may constitute sufficient cause as it could be urged that on account of such acts and conduct, the complainant was made to believe that he need not resort to the proceedings, and was, thus, prevented from instituting the proceedings. 16. The submission which, however, deserves serious consideration is that, since the condonation of delay in a complaint under Section 138 of the Act, 1881 has the potentiality of entailing penal consequences, the court ought not to adopt a very liberal approach, as it impinges upon the right of the accused to fair and speedy trial. 17. To begin with, from the text of proviso to Section 142(1)(b), such restrictive approach in the matter of condonation of delay is not evident. At the same time, it needs to be emphasised that there is a qualitative difference between proceedings which have civil consequences and one s which entail penal consequences. The difference in the approach in the matter of condonation of delay, therefore, cannot be said to be inconceivable. 18. De hors the aspect of limitation, where there is no statutory prescription of limitation for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and to prevent abuse of process of the court. 21. The aforesaid considerations enunciated by the Supreme Court are germane even when considering the justifiability of the reason to condone the delay in prosecution where the Court is required to take cognizance of the offence beyond the prescribed period of limitation upon being satisfied about the sufficiency of the cause. The extent of delay, nature of the prosecution, the circumstances of the case, the conduct of the parties and the consequences which the prosecution, in the event it ends in conviction, entails, are the relevant factors which bear upon the exercise of the discretion. 22. Re-adverting to the facts of the case, the nature of the proceedings in a complaint under Section 138 of the Act, assumes significance. Learned Counsel for the Petitioner made an earnest endeavour to draw home the point that the prosecution for an offence under Section 138 of the Act, entails punishment, and, therefore, a strict interpretation is the norm. The courts below could not have, therefore, condoned the delay in a light manner. 23. The aforesaid submission regarding the nature of the proceeding under Section 138 of the Act, canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i criminal in nature. In paragraph No. 84 of the said judgment, the Supreme Court concluded that given the hybrid nature of a civil contempt proceeding, described as quasi-criminal by several judgments of the Supreme Court, there was nothing wrong with the same appellation quasi-criminal being applied to Section 138 proceeding for the reasons given by the Supreme Court on an analysis of Chapter XVII of the Act, 1888. 26. Another three Judge Bench of the Supreme Court again had an occasion to consider the nature of the proceedings under Chapter XVII of the Act, 1888 in the case of Gimpex Pvt. Ltd. V/s. Manoj Goel (2022) 11 SCC 705 . The Supreme Court observed that the nature of the offence under Section 138 of the NI Act is quasi-criminal in that, while it arises out of a civil wrong, the law, however, imposes a criminal penalty in the form of imprisonment or fine. The purpose of the enactment is to provide security to creditors and instil confidence in the banking system of the country. Laying emphasis on the fact that the statutory regime under the Act, 1881 permits composition of the offence during the pendency of the trial and even after the conviction, the Supreme Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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