Petition challenging the condonation of delay in filing a cheque dishonour complaint. The Court held that the delay was justified due to the pendency of the previous complaint and allowed it to proceed.
Petition filed under Article 226 of the Constitution of India dismissed with no reason to interfere in the impugned orders.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP-790-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 790 OF 2023
Afrojkhan Bashirkhan Pathan
...Petitioner
Versus
Mandodara Madhavrao Kendre
...Respondent
***
Ms. M. S. Mhase, Advocate for the Petitioner.
Mr. T. M. Venjane, Advocate for Respondent.
***
CORAM:R.M. JOSHI, J.
DATE:OCTOBER 18, 2023
PER COURT:
1.This Petition takes exception to the order
dated 07.10.2022 passed in Criminal M.A. No. 155/2020
filed under Section 142(B) of Negotiable Instruments
Act (for short ‘NI Act’) for condonation of delay of
1145 days in filing complaint under the provisions of
NI Act and confirmation of the said order by Revisional
Court by its order dated 02.05.2023 passed in Criminal
Revision no. 15/2022.
2.Respondent filed complaint bearing no. 33/2017
before learned JMFC, Nilanga under Section 138 of NI
Act. It is the case of the complainant that accused had
issued cheque of Rs. 3 lacs which came to be
Page 1 of 5
WP-790-2023.odt
dishonoured for insufficient funds. The complainant
issued notice dated 31.12.2016 by registered post which
was refused to be accepted by the accused on
03.01.2017. Hence, complaint came to be filed on
15.04.2017. Petitioner/Orig. Accused appeared before
learned Magistrate and filed application under Section
251 of CrPC. The order on said application was
challenged before this Court by filing Criminal Writ
Petition No. 1127/2018. On 11.12.2019 the said Petition
came to be allowed and it is held that the complaint is
pre-mature and hence, not maintainable. On 05.03.2020
Respondent filed fresh complaint with an application
for condonation of delay under Section 146(B) of NI
Act. The delay of 1145 days was sought to be condoned.
Application was opposed by the Petitioner. It is
specific contention of the Petitioner that the delay of
82 days has not been explained and hence, learned
Magistrate fell in error in condoning the said delay.
Criminal Revision filed against said order was also
rejected. Hence, this Petition.
3.Learned Counsel for the Petitioner submits
that the Respondent/Orig. Complainant explained the
Page 2 of 5
WP-790-2023.odt
delay except for 82 days. Thus, it is her contention
that unless there is satisfactory explanation with
regard to the said delay, the Court mechanically ought
not to have condoned the same. It is also submitted
that no reasons are recorded by the learned JMFC while
condoning the delay caused in lodging of complaint. It
is submitted that this Court had set aside the
complaint being pre-mature by holding that it is not
maintainable. In such circumstances, it does not stand
to any justification that the complainant waits for
formal disposal of the previous complaint by learned
Magistrate then to claim that the delay occurred on
that count be condoned.
4.Learned Counsel for Respondent supported the
impugned order.
5.There is no dispute about the fact that the
Section 142(B) provides for condonation of delay caused
in filing of complaint for offence under Section 138 NI
Act after accrual of cause of action. In appropriate
cases where the delay is satisfactorily explained and
the same is not deliberate or malafide, the delay
Page 3 of 5
WP-790-2023.odt
caused in lodging of the complaint deserves to be
condoned. As far as present case is concerned,
initially complaint was made before learned Magistrate
and the Magistrate issued process against the
Petitioner/accused on 15.04.2017. The said complaint,
however, came to be challenged by filing Revision which
was allowed on 14.12.2019. This fact itself is
sufficient to indicate that there could be no intention
on part of complainant to file complaint belatedly.
Though technically Respondent ought to have filed
complaint immediately after disposal of revision by
this Court holding previous complaint not maintainable,
however, admittedly learned Magistrate did not formally
dispose of the said complaint immediately. In such
circumstances, there is justification for
Respondent/Orig. Complainant to say that formally SCC
No. 33/2017 was not disposed of and it was only
disposed of on 31.01.2020 and after obtainment of
certified copy of the said order on 12.02.2020,
complaint is filed thereafter. These facts are self
explanatory.
6.Having regard to these facts, this Court finds
Page 4 of 5
WP-790-2023.odt
no reason for causing interference in the impugned
orders. Hence, Petition stands dismissed.
(R.M. JOSHI, J.)
Malani
Page 5 of 5
2 issues framed by the court
Whether the High Court should interfere with the order condoning delay of 1145 days in filing a complaint under Section 138 of the Negotiable Instruments Act.
Whether the unexplained delay of 82 days and the recommencement of limitation after disposal of the previous pre-mature complaint warrant allowance of condonation.
4 provisions across 2 enactments
Afrojkhan Bashirkhan Pathan
Mandodara Madhavrao Kendre
R.M. JOSHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court