Satyendra Kumar Mishra Vs State of U.P. Thru. Its Prin. Secy. Home Civil Sectt. Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:15608

Court No. - 12

Case :- APPLICATION U/S 482 No. - 1684 of 2025

Applicant :- Satyendra Kumar Mishra Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Home Civil Sectt. Lko. And Another Counsel for Applicant :- Anurag.S.Kaalesh,Neelanjali Gupta,Utkarsh Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Sri Anurag S. Kaalesh, learned counsel for the applicant as well as learned A.G.A. for opposite party no. 1 and Sri Sudeep Kumar, learned counsel appearing for opposite party no. 2.

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Present application under Section 482 Cr.P.C. arises out of order dated 16.12.2024, passed by the Additional District and Sessions Judge, Lucknow whereby the criminal revision preferred by the applicant against the summoning order passed in proceedings under Section 138 of the Negotiable Instruments Act, have been rejected.

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Brief facts as submitted by learned counsel for the applicant are that opposite party no. 2 filed a criminal complaint on 01.02.2012, stating that in the business transaction a cheque baring no. 046306 dated 15.10.2011 for an amount of Rs.1,49,307/- was issued in favour of opposite party no. 2 and when the said cheque was presented before the Bank for encashment, it was returned with memo which had endorsement to the effect that the said cheque has bounced due to insufficient funds in the account of the applicant's firm.

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It has been stated by learned counsel for the applicant that the complaint was filed with delay of 28 days and subsequently, statement under Section 200 of Cr.P.C. was recorded and cognizance was taken by the Additional Chief Judicial Magistrate, Lucknow issuing summons to the applicant by order dated 23.05.2012. In the order dated 23.05.2012, the Additional Chief Judicial Magistrate recorded the fact that the cheque has been issued by the applicant to the opposite party no. 2, amounting to Rs.1,49,307/- and same bounced, pursuant to which notice was given on 30.11.2011, by opposite party no. 2 thorugh his counsel, but despite issuance of notice, the outstanding amount was not paid by the applicant and

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accordingly, aforesaid complaint was filed and summons were issued to the applicant. The applicant was summoned by order dated 30.05.2012, who preferred revision against the said summoning order. The revision was filed before the Court of Additional District and Sessions Judge, Lucknow being Criminal Revision No. 265 of 2019. The revisional Court had duly considered the arguments raised by the respective parties and was of the considered view that the trial Court at the stage of issuing summons would be deemed to have noticed the delay, if any, in filing of the complaint and once summons were issued, the delay if any was deemed to have been condoned and consequently, on this ground, no infirmity could be found with the proceedings initiated at the behest of complainant under Section 138 NI Act and accordingly rejected the revision preferred by the applicant.

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In the present proceedings under Section 482 Cr.P.C. both the orders have been assailed.

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It has been vehemently submitted by learned counsel for the applicant that in case there was any delay by the complainant seeking condonation of delay in filing the complaint, same should have been duly considered by the trial Court at the stage of taking cognizance and even the revisional Court had misdirected itself by holding that the trial Court has looked into the contents of the applicant for condonation of delay and the delay would have been deemed to be condoned once summons have been issued. He submits that both the Courts below have erred in law and accordingly, prays for setting aside the impugned orders.

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On the other hand learned counsel appearing for opposite party no. 2 has opposed the present application. He submits that according to Section 142(2)(b) of the Negotiable Instruments Act, 1881, complaint has to be made within one month of the date on which cause of action arises under Clause (c) of the proviso to Section 142 and the proviso further states that cognizance of the complaint may be taken by the Court after the prescribed period, looking to the fact that the complainant has sufficient cause for not making such complaint within the prescribed period. It is submitted that only necessity for invoking the proviso to Section 142(1)(b) of the NI Act was that the reasons for delay in filing complaint have to be stated and it is only when the trial Court records its satisfaction that the delay has been duly explained, cognizance is taken by the Court.

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Emphasizing his submissions, learned counsel for opposite party no. 2 has submitted that this aspect was considered by the

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Hon'ble Supreme Court in the case of Davinder Pal Sehgal and Another Vs. Partap Steel Rolling Mills Pvt. Ltd., (2002) 3 SCC 156 , where the Apex Court has stated that in case, trial Court has looked into the application and considered reasons for condonation of delay and issued summons, then delay would have been deemed to be condoned. The relevant observations of the Apex Court in the case of Davinder Pal Sehgal and Another (supra) are quoted herein below :-

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" 6. Learned counsel appearing on behalf of the appellants submitted that the grounds for restoration as well as condonation of delay were fully enumerated in the restoration application, a rejoinder whereto was filed and the trial court while passing the order for restoration, having considered facts stated in the restoration application and rejoinder and being satisfied with the cause shown in the restoration application would be deemed to have condoned the delay in filing the restoration application as such the High Court was not justified in interfering with the order of the trial court as there was no error of jurisdiction therein. On the other hand, learned counsel appearing on behalf of the respondents submitted that this Court should not interfere with the impugned order as the application for restoration was earlier dismissed for non-prosecution.

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7. We have perused the restoration application as well as petition filed under Section 5 of the Limitation Act for condonation of delay in filing the same. It appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non-appearance on 24-8-1988 but also to show sufficient cause for condonation of delay in filing the restoration application. This is the reason why in the petition for condonation of delay, it has been simply stated that facts stated in the restoration application may be taken into consideration for condonation of delay in filing the restoration application. Therefore, merely because in the order of the trial court, specifically, there is no reference to petition for condonation of delay, it cannot be said that it did not consider the same. From a bare perusal of the order, it would appear that the grounds stated in the restoration application for non-appearance on 24-8-1988 as well as delay in filing the restoration application having found favour with the trial court, the suit has been restored, therefore, it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. The submission of the learned counsel appearing on behalf of the respondents that application for restoration filed on behalf of the plaintiffs was dismissed earlier for non-prosecution cannot be taken to be a ground for throwing out the restoration application as the High Court on the earlier occasion set aside order of the trial court whereby restoration application was dismissed for non-prosecution and the said order attained finality. In view of these facts, we are of the opinion that trial court had not acted in the exercise of its jurisdiction illegally or with material irregularity and accordingly the High Court was not justified in interfering with its order in the exercise of revisional jurisdiction. "

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It is further submitted by learned counsel for opposite party no. 2 that coordinate Bench of this Court has duly considered the case of Davinder Pal Sehgal and Another (supra) in the case of Dropati Devi Vs. Board of Revenue and Others, 2018 SCC OnLine All 3669 , and in similar circumstances had held

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that delay would be deemed to have been condoned in such circumstances. The relevant portion of Dropati Devi (supra) is quoted herein below :-

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" 13. Having heard the learned counsel for the petitioner and the learned Standing Counsel and after having perused the impugned orders, I am of the view that the matter need not be remanded back to the Sub-Divisional Officer for giving a specific finding as to whether delay had to be condoned. As per the law laid down in (2002) 3 SCC 156 (Davinder Pal Sehgal v. Partap Steel Rolling Mills Pvt. Ltd.); (2010) 12 SCC 159 (Bhagmal v. Kunwar Lal) and 2014 (123) RD 254 (Indrajeet Singh v. D.D.C. Gorakhpur) when the Court had restored the Suit it shall be deemed it had condoned the delay. the Court shall now proceed with the suit as was filed by the respondent No. 5, Indra Dev, afresh and shall decide the same within a period of six months from the date of presentation of a certified copy of this order. Till the suit is decided status quo shall be maintained over the property in question. "

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Learned counsel for the applicant submits that in the complaint it has been stated that the complaint is within time and accordingly, there was no occasion for the trial Court to look into the application for condonation of delay.

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Countering the aforesaid submissions made by learned counsel for the applicant, it is submitted by learned counsel for opposite party no. 2 that application for condonation of delay was on record, then mere assertion made in the complaint that it was not given within time, would have no consequence. He further submits that all the reasons for delay in filing the complaint were stated and merely stating that the complaint was within time would be of no consequence in the peculiar circumstances.

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Heard learned counsel for the parties and perused the record.

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It is noticed that there was some delay in filing the complaint. It is further undisputed that the complaint was accompanied by an application for condonation of delay where the complainant had stated that he had given all his papers to his counsel for filing the complaint, but the said counsel did not file the complaint and returned the papers back to the complainant and accordingly, he engaged another counsel who filed the complaint and in the meanwhile period of limitation expired. It is stated that in the aforesaid circumstances, there was no fault of the complainant and consequently, prayed for condonation of delay in filing the complaint.

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On perusal of aforesaid delay condonation application this Court finds that sufficient reasons have been indicated by the complainant for condonation of delay and the trial Court after

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duly examining the material on record as well as statement recorded under Section 200 Cr.P.C., had taken cognizance of the complaint by issuing summons to the applicant. It is in the aforesaid circumstances, this Court finds that as per judgment of the Apex Court in the case of Davinder Pal Sehgal and Another (supra) the delay would be deemed to be condoned considering the fact that all the relevant contents of the delay condonation application had been duly stated by the complainant in the said application for condonation delay. This Court finds that sufficient reasons were duly indicated by the complainant in the said application and the trial Court had duly taken cognizance of the same and even if the said facts were mentioned or that delay was sufficiently explained, the delay has been condoned by the trial Court, it cannot be said that the Court had committed any infirmity.

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Apart from the above, this Court finds that under Section 142(b) of the NI Act, the provision only provide for showing sufficient cause for not making the application for condonation of delay within the prescribed period and there is no provision which may state that the Court should specifically condone the delay prior to issuance of summons or taking cognizance of the complaint.

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Accordingly, in the aforesaid circumstances, this Court finds that no infirmity has been committed by the trial Court while passing order dated 23.05.2012 and also by the revisional Court while rejecting the revision of the applicant by means of order dated 06.12.2024. Hence, this Court does not find any ground for interference in the impugned orders.

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The present application under Section 482 Cr.P.C. being devoid of merits is hereby dismissed .

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Order Date :- 17.3.2025 A. Verma

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(Alok Mathur, J.)

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Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

Satyendra Kumar Mishra v. State of U.P. Thru. Its Prin. Secy. Home Civil Sectt. Lko. and Another

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Satyendra Kumar Mishra v. State of U.P. Thru. Its Prin. Secy. Home Civil Sectt. Lko. and Another

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