Basu Dev Sharma Vs Sunita Sharma

Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the Petitioner : Mr Deepak Sharma, Advocate. For Respondent : Nemo

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for setting aside the order dated 06.04.2026, passed by the learned Additional Sessions Judge-II, Shimla (Camp at Theog), District Shimla, H.P. (learned Revisional Court), vide which the order dated 02.11.2023 passed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla (learned Trial Court), was upheld. (The petitioner hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Briefly stated, the facts giving rise to the present petition are that the respondent (Complainant before learned Trial Court) filed a complaint under Section 138 of the Negotiable Instruments Act (NI Act) before learned Additional Chief Judicial Magistrate, Theog, District Shimla, HP., which was registered as Criminal Case No. 183 of 2020. The learned Trial Court held vide judgment dated 18.01.2023 that the complaint was premature, and dismissed the complaint.

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The complainant filed a fresh complaint before the Learned Trial Court along with an application under Section 142 of the NI Act for condonation of the delay in filing the complaint. It was asserted that the earlier complaint was held to be premature and the complainant was entitled to file a fresh complaint in terms of the judgment of Hon'ble Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey 2014(10) SCC 713 and Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711. The delay occurred because of the prosecution of the earlier complaint. Hence, it was prayed that the delay be condoned.

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Notice of the application was issued to the accused (the petitioner in the present petition), who filed a reply asserting that

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the complaint was to be filed within one month from the date of the decision in the earlier complaint and only then the delay in filing the complaint would be treated to have been condoned under Proviso (b) of Section 142 of the N.I. Act. In the present case, the complaint was filed on 21.02.2023, beyond one month. There was a delay of 34 days from the date of the decision, and the fresh complaint was time-barred. Therefore, it was prayed that the present application be dismissed.

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Learned Trial Court held that the complainant was diligently prosecuting the earlier complaint with effect from 11.03.2020 till 18.01.2023. The time between 19.01.2023 and 27.01.2023 was spent in preparing the certified copy and was to be excluded. The complainant had a sufficient cause for the condonation of the delay. Hence, the delay was condoned.

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Being aggrieved by the order passed by the learned Trial Court, the accused filed a revision, which was decided by the learned Additional Session Judge No. II, Shimla, (Camp at Theog), District Shimla, H.P. (learned Revisional Court). Learned Revisional Court held that the complainant could have filed a complaint within one month of the dismissal of her earlier

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complaint. The application was filed on 04.02.2023, which was within one month. Learned Trial Court had rightly condoned the delay. Hence, the revision was dismissed.

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Being aggrieved by the orders passed by the learned Courts below, the petitioner/accused has filed the present petition, asserting that the learned Courts below failed to properly appreciate the material on record. The complaint was dismissed on 18.01.2023, and no liberty was granted to file a fresh complaint. Learned Trial Court erred in entertaining a fresh complaint in the absence of liberty. The complainant had failed to disclose any sufficient cause for condonation of the delay. The complaint was filed on 21.02.2023, and the delay was mechanically condoned. Therefore, it was prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside.

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Mr Deepak Sharma, learned counsel for the petitioner/accused, submitted that the learned Trial court erred in condoning the delay in filing the second complaint. No liberty was granted to the complainant to file a fresh complaint, and the second complaint was not maintainable. The term sufficient cause has to be strictly construed, and there was no sufficient cause in

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the present case. Hence, he prayed that the present petition be allowed and the order passed by the learned Courts below be set aside. He relied upon the following judgments in support of his submissions: -

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N. Mohandoss vs. The Management of Darasuram & anr. W.P. No. 37399 of 20024, decided on 08.07.2021;

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K.B.Lal (Krishna Bahadur Lal) vs. Gyanendra Pratap & ors. 2024: INSC 281;

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State (NCT of Delhi) vs. Ahmed Jaan 2008(14)SCC 582;

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Pathapati Subba Reddy (died) by LRs & Ors. vs. The special Deputy Collector (LA) 2024 INSC 286;

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Sarguja Transport Service vs. State Transport Appellate Tribunal 1987 SCC (1) 5; and

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Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711.

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I have given a considerable thought to the submissions

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made at the bar and have gone through the records carefully.

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It is undisputed that the petitioner had filed a revision before the learned Revisional Court, which was dismissed by the learned Revisional Court. It was laid down by the Hon’ble Supreme Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC 241 that the High Court can intervene under Section 482 of CrPC (corresponding to Section 528 of BNSS) when there is a grave miscarriage of justice or abuse of the process of the Court. It was observed:

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“10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and, in an appropriate case, even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed, and public justice can be ensured only when the trial is conducted expeditiously.

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11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10], a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases, but in Section 482, it is provided that

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nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognisance of the commission of the offence by the appellant was taken to trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code.

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12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393), a four-judge Bench per majority held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In the Rajan Kumar Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537], the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not reviewable under Section 482 in the exercise of inherent powers by operation of sub-section

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(3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333], which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10 ] as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view of our observations stated earlier. The ratio in the Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court, without applying its mind, had discharged the accused. On appeal, this Court, after going through the record, noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused, leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate.

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13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990 SCC (Cri) 327] has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323 IPC, the Judicial Magistrate, First Class, had taken cognisance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second-Class Magistrate, who, after examining the witnesses, issued a process to the accused. The High Court, exercising the power under Section 482, dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.

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14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on the merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.”

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This position was reiterated in Rajinder Prasad v.

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Bashir, (2001) 8 SCC 522 , wherein it was held:

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“…though the power of the High Court under Section 482 of the Code is very wide, the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been a failure of justice or misuse of judicial mechanism or procedure, a sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.”

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A similar view was taken in Kailash Verma v. Punjab

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State Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held:

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“5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118 ] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code, as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.”

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This position was reiterated in Shakuntala Devi v. Chamru Mahto , (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292 , wherein it was observed: -

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“24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed, and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482 was not subject to the prohibition under sub-section (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code, debarring the High Court from entertaining an application under Section 482 thereof, does not, therefore, commend itself to us.

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25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same.

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26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963.

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Delhi High Court also took a similar view in Surender

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Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —

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“5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But that power was to be exercised sparingly and with great caution, particularly when the person approaching the High Court has already availed a remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved by the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before the Sessions Court. It all depends not only on the facts and circumstances of each case but also on whether the impugned order brought about a situation that is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court i n Madhu Limave v. State of Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571 .”

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It is apparent from the judgments that the High Court

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has a limited jurisdiction, and it can rectify a serious miscarriage of justice or a breach of a mandatory provision of law while exercising its jurisdiction under Section 528 of BNSS corresponding to Section 482 of Cr.P.C.

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The Hon'ble Supreme Court had held in Yogendra

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Pratap Singh (supra) that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of the decision in the criminal case, and the delay in filing the complaint would be treated as having been condoned under Proviso b of Section 142 of the NI Act. This position was

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reiterated in Gajanand Burange ( supra ), wherein it was observed: -

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5. The issue which is raised in this appeal is no longer res integra and is covered by a three-Judge bench decision of this Court in Yogendra Pratap Singh v. Savitri Pandey (2014) 10 SCC 713 . Two issues were formulated for decision before the three-Judge Bench, which were:

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“1.1. (i) Can cognisance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? And,

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1.2. (ii) If the answer to Question 1 is in the negative, can the complainant be permitted to present the complaint again, notwithstanding the fact that the period of one month stipulated under Section 142(b) for the filing of such a complaint has expired?”

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6. The first issue was resolved by paragraph 35 of the judgment, which is extracted below:

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“35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines “complaint”. According to this definition, a complaint means any allegation made orally or in writing to a Magistrate

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with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognisance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eyes of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him; it is no complaint at all under the law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognisance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognisance of an offence can be taken on the basis of such a complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque.”

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7. In the present case, while the notice was received by the appellant on 8 November 2005, the complaint was filed before the period of fifteen days was complete. The complaint could have been filed only after 23 November 2005, but was filed on 22 November 2005. In view of the legal bar which is created by Section 142 of the NI Act, as explained in the three-Judge Bench decision of this Court,

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taking of cognisance by the Court was contrary to the law and the complaint was not maintainable before the expiry of the period of fifteen days from the date of its receipt by the appellant.

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8. However, on behalf of the respondent, it has been urged that the second issue, which was raised before the threeJudge Bench, has been dealt with in the following terms:

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“41… Now, since our answer to Question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to apply to all such pending cases where the complaint does not proceed further in view of our answer to Question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint, and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly.”

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9. We are of the view that the respondent would be entitled to the benefit of the determination on the second issue, as extracted above.

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Thus, it is apparent that the Hon'ble Supreme Court

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had itself granted the liberty to file a fresh complaint, where the complaint was found to be premature, and the submission that a

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fresh complaint was not maintainable in the absence of the permission cannot be accepted. The Code of Criminal Procedure (CrPC) does not contemplate the granting of permission to file a fresh complaint, and the learned Trial Court could not have granted any such permission. However, the Hon'ble Supreme Court had a jurisdiction under Article 142 of the Constitution of India to grant such a benefit, which was granted and would be available to the complainant in the present case as well. Thus, the judgment cited on behalf of the petitioner in Sarguja Transport Service (supra) does not apply to the present case.

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Both the learned courts below have concurrently held that the complaint was filed on 04.02.2023, and it was filed within one month from 18.01.2023, the date of dismissal of the earlier complaint. Thus, the submission that the complaint was filed beyond one month cannot be accepted, and the judgments in N. Mohandoss (supra), K.B. Lal (supra) and Ahmed Jaan (supra) dealing with the interpretation of the term ‘sufficient cause’ do not apply to the present case.

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An attempt was made before this Court to demonstrate from the data downloaded from the e-Courts that the complaint

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was filed on 21.02.2023, which was beyond the period of one month. This document will not help the petitioner because the date of filing is usually mentioned as the date when the Court applies its mind and not when the complaint is actually filed before the Court. Since, in the present case, the date when the complaint was actually filed is material, the findings recorded by the learned Courts below have to be preferred to the endorsement made on the website of the e-Courts.

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Thus, the very basis of the petition that the complaint

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was beyond the period of one month is fallacious, and the learned Courts below had rightly rejected the objections preferred by the petitioner/accused. No interference is required with the judgments/orders passed by the learned Courts below.

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No other point was urged.

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In view of the above, the present petition fails, and it is

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dismissed. The pending application(s), if any, also stand disposed of.

Basu Dev Sharma v. Sunita Sharma

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Basu Dev Sharma v. Sunita Sharma

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