Allowed

Kesarimal S/O. Lakmaji Jain v. Zakirahameds/O. Davalsab Kanavi

Karnataka HC10 Feb 2021CRL.RP/2113/2012

Case brief

AI extract

What is this about?

This court examined the maintainability of a criminal revision petition filed to dismiss a cheque bouncing complaint. The court held that issuing notice before the Magistrate decided the delay condonation application was an error. The revision against such an interlocutory order was unsustainable, and the matter was remanded to the trial court to decide the application for condoning delay.

What did the court decide?

The order of the Revisional Court quashing the complaint and issuing notice by the trial court were set aside. The matter was remanded to the trial court to decide the application for condoning delay

Kesarimal S/O. Lakmaji Jain Vs Zakirahameds/O. Davalsab… — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^th DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2113/2012

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BETWEEN:

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KESARIMAL S/O LAKMAJI JAIN AGE 60 YRS., OCC: BUSINESS R/O JANATA KIRANI STORES BANK ROAD, GADAG.

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.. PETITIONER

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(BY SRI. K.L. PATIL AND S.S. BETURMATH, ADVOCATES)

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AND:

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ZAKIRAHAMED S/O DAVALSAB KANAVI AGE 42 YRS., OCC: BUSINESS R/O CHIDANAD MATH, GADAG.

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.. RESPONDENT

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(BY SMT. ROOPA CHINIVAR, ADV. FOR SRI. H.N.GULAREDDI, ADV.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 16.12.2011 PASSED BY THE DISTRICT AND SESSIONS COURT, GADAG IN CRIMINAL REVISION PETITION NO.47/2010

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THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is filed by the petitioner/complainant as against the order passed by the learned District and Sessions Judge, Gadag (hereinafter referred to as the ‘Revisional Court’, for brevity) in Criminal Revision Petition No.47/2010 dated 16.12.2011 dismissing the compliant by setting aside the order passed by the learned I Additional Civil Judge (Junior Division) and JMFC-I, Gadag, in P.C.97/2010 dated 26.06.2010.

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Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

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The rank of the parties before the trial Court is retained

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for convenience.

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The case of the complainant before the trial Court is that, he filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’ for brevity) against the accused for the offence under Sections 138 and 142 of the Negotiable Instruments Act, 1885 (hereinafter referred to as the ‘NI Act’, for brevity) alleging that the complainant gave

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hand loan of Rs.1,50,000/- to the accused and in discharge of the loan, the accused gave a cheque bearing No.1002466 to the complainant. When the complainant presented the said cheque for clearance, it was returned to the complainant on 06.12.2006 with an endorsement ‘payment stopped by the drawer’. A legal notice was issued to the accused on 27.12.2006 giving fifteen days time to the accused to make the repayment. The accused gave an evasive reply and therefore, a complaint came to be filed before the Court on 11.07.2007. The complainant also filed an I.A. under Section 142(b) of the NI Act for condoning the delay of 152 days in filing the complaint. The trial Court by order dated 09.04.2010 issued notice to the accused on I.A. for condoning the delay. On 27.05.2010 the Court summoned the accused. One RSB for LMA filed vakalat and sought some time for filing objections to I.A. and the matter was adjourned to 26.06.2010. On 26.06.2010 LMA prayed time again and the case was adjourned to 08.07.2010. In the meanwhile, the respondent/accused preferred a revision petition before the Revisional Court in Crl.Rev.Petition No.47/2010 challenging the order dated 26.06.2010. The respondent/accused challenged registering of the private complaint No.97/2010 and

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taken a contention that there is delay of five months in filing the complaint as per Section 138 of NI Act and the complaint ought to have been filed within one month from the date of cause of action arouse.

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Considering the arguments addressed by the learned counsel for the accused, the Revisional Court allowed the revision petition and set aside the issuance of summons to the accused and dismissed the complaint. The same is challenged before this Court by the complainant.

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Learned counsel for the petitioner/complainant strenuously contended that the order passed by the Revisional Court is erroneous and illegal. The Revisional Court not considered the order dated 26.06.2010 where the trial Court granted time to accused for filing objections. In fact there is no order passed against the accused. It is an order only to file objections by the accused for considering the delay of 152 days in filing the complaint. Therefore, the Revisional Court ought not to have dismissed the complaint rather it could have remanded back the matter to the trial Court for considering the delay application. The

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complaint cannot be dismissed by the Revisional Court when the trial Court not taken any cognizance on the complaint which is a preliminary stage and even it is premature to interfere by the Revisional Court. Hence, prayed for setting aside the order passed by the Revisional Court and to remand back the matter to the trial Court to proceed in accordance with law.

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Per contra, learned counsel for the respondent supported the order passed by the Revisional Court and contended that the trial Court ought not to have issued notice to the accused before taking cognizance and the trial Court ought not to have given private number by filing the complaint without condoning the delay. She further contended that the Revisional Court has rightly passed the order dismissing the complaint by setting aside the order of the trial Court. Hence, prayed for dismissal of the revision petition.

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Upon hearing the arguments of the learned counsel for

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the petitioner and the learned counsel for the respondent, the only point that arises for consideration is:

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“Whether the Revisional Court committed an error in dismissing the complaint when the trial Court not taken cognizance on the complaint of the complainant?”.

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On perusal of the records, it shows the complainant filed a private complaint under Section 200 Cr.P.C. R/w. Sections 138 and 142 of the N.I. Act. Admittedly, he has filed I.A. under Section 142(b) of N.I. Act for condoning the delay of 154 days in filing the complaint. The order sheet of the trial Court shows, after giving the private complaint numbered as PC No.97/2010, the trial Court issued notice to the respondent/accused calling for the objection, if any, on the bail application filed by the complainant under Section 142 of the N.I. Act. However, the trial Court not yet decided I.A. filed under Section 142(b) of the N.I. Act. In the meanwhile, the accused preferred the revision and got quashed the complaint itself. According to my information, both the Courts below committed error in passing the orders. Once the complaint came to be filed by the complainant along with I.A. for condoning the delay, before taking cognizance, issuing notice to the accused does not arise. Here in this case, Section 142 (1) (b) application came to be filed by the complainant for condoning the delay. The

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trial Court not yet taken cognizance as per Section 142 of the N.I.Act. There is bar to take cognizance by the trial Court under Section 142(1)(b) of the N.I. Act, if it is not filed within one month of the date on which cause of action arises as per clause (c) of proviso to Section 138 of N.I. Act. However, proviso to Section 142(1)(b) defines the cognizance of the complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the said period.

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A bare reading of the proviso to Section 142(1)(b) of N.I. Act, it says the Magistrate requires to satisfy himself or herself before taking the cognizance, if the complainant makes the case for condoning the delay. Here in this case, the I.A. filed but not yet decided by the trial Court. Therefore, before deciding the I.A. under Section 142(b) of the N.I. Act, the question of issuing notice to the accused does not arise. After considering the I.A for condoning the delay, if the Magistrate is not satisfied, he can dismiss the complaint in limine and even the Magistrate can record the evidence of the complainant under Section 142(b) in order to

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satisfy whether he has made out any reasonable ground for condoning the delay or not. If the delay is not properly satisfied, the Magistrate has every power to dismiss the complaint without condoning the delay. Further the Magistrate not yet recorded the sworn statement of the complainant in order to take cognizance of the offence and issue process under Section 204 of Cr.P.C. Even there is provision under Sections 301, 202 and 203 Cr.P.C. If after recording the sworn statement and production of documents, if any, and recording statement of any other witnesses of the complainant, the trial Court or the Magistrate is not satisfied with the complaint, he can dismiss the complaint under Section 203 of Cr.P.C. and if he found the case for taking cognizance he can issue process under Section 204 Cr.P.C.

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Such being the case, before considering the I.A. under Section 142(b) of the N.I. Act, the trial Court ought not to have issued notice to the respondent/accused. However, the Revisional Court though considered the revision, it has held that the complainant is required to satisfy the trial Court for condoning the delay. Such being the case, the Revisional Court ought to have set

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aside issuing of notice to the respondent-accused and remanded the matter back for considering the I.A. filed by the complainant under Section 142 (b) of N.I. Act and waited till recording the sworn statement of the complainant, but the complainant cannot question when the trial Court not taken the cognizance of the complaint filed by the complainant.

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Such being the case, the Revisional Court committed error in dismissing the complaint as it is barred by limitation. The revision itself is not sustainable and not maintainable under Section 397 (2) of Cr.P.C. Since notice was issued on I.A. which is an interlocutory application where the revision is not maintainable. Therefore, the order of the Revisional Court to be set aside and issuing notice by the trial Court is also to be set aside and the matter is to be remanded back to the trial Court to consider the delay application filed by the complainant by recording his evidence, if any, on production of document in order to satisfy itself for entertaining the complaint and after recording the sworn statement of the complainant the trial Court to proceed in accordance with law either dismissing the complaint or issuing

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process to the complainant as per Section 203 and 204 of Cr.P.C. Accordingly, I pass the following:

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ORDER

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The petition is allowed .

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The order passed by the Revisional Court dismissing the complaint is set aside. However, issuing notice to the complainant by the trial Court is also set aside. The matter is remanded to the trial Court to proceed in accordance with law by passing the order under Section 142(b) of the N.I. Act and later proceed with the complaint by recording the sworn statement and proceed the matter in accordance with law.

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The case is pertaining to the year 2010 and therefore, the trial Court shall endeavour to dispose of the matter as early as possible within six months from the date of receipt of copy of this order.

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Sd/JUDGE

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kmv/gab

Kesarimal S/O. Lakmaji Jain v. Zakirahameds/O. Davalsab Kanavi

Case brief

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Kesarimal S/O. Lakmaji Jain v. Zakirahameds/O. Davalsab Kanavi

Case brief

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