Allowed

Elan Professional v. M/S Crown Culinax Pvt. Ltd.

Karnataka HC25 Mar 2024CRL.A/641/2015

Case brief

AI extract

What is this about?

Complainant's appeal against dismissal of its Section 138 NI Act complaint for a 20-day filing delay. The High Court held a liberal view should be taken per Supreme Court authority, allowed the appeal, set aside the trial court's order, condoned the delay and restored the complaint.

What did the court decide?

Impugned order set aside; application under S.142(b) NI Act allowed; 20-day delay condoned; complaint restored; parties to appear before trial court on 15.04.2024.

Elan Professional Vs M/S Crown Culinax Pvt. Ltd. — Cheque Dishonour | Karnataka HC (2024)

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CRL.A No. 641 of 2015 NC: 2024:KHC:12117

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.641 OF 2015

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BETWEEN:

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ELAN PROFESSIONAL APPLIANCES PVT LTD., C-95, KSSIOC INDUSTRIAL AREA, MAHADEVAPURA, BENGALURU - 560 048. REPRESENTED BY C.S.RAJU, AGED ABOUT 44 YEARS, S/O APPALE RAJ, MANAGER ACCOUNTS.

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…APPELLANT

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(BY SRI. DINESH RAO N, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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M/S CROWN CULINAX PVT LTD., 329, GF 10^TH MAIN, 17^TH CROSS, INDIRANAGAR, BENGALURU - 560 038, REPRESENTED BY SRI. VINOD, AUTHORISED SIGNATORY.

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…RESPONDENT (BY SRI. VISHWANATH R HEGDE, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 20.04.2015, PASSED IN PCR NO.13491/2014 BY THE XXV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU AND PUNISH THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, IN THE INTEREST OF JUSTICE.

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CRL.A No. 641 of 2015 NC: 2024:KHC:12117

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the rejection of application filed for condonation of delay and thereby dismissing the complaint filed by it under Section 200 Cr.P.C against the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument (for short "N.I. Act"), appellant who is complainant has filed this appeal under Section 378(4) of Cr.P.C.

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For the sake of convenience the parties are referred to by their rank before the trial Court.

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It is the case of the complainant that at the request of accused, it has supplied goods vide invoice dated 14.05.2014 and the delivery note. Towards repayment of the amount due, accused issued cheque for Rs.3,14,485/-. When presented for encashment, it was returned dishonoured for insufficient funds. After issuing legal notice and on the failure of complainant to pay the amount due, the complaint is filed. The legal notice was

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served on the accused on 23.06.2014. Accused requested for some time. After he failed to pay the amount due, complaint is filed.

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3.1 Along with the complaint, complainant filed application under Section 142 (b) of N.I. Act with a prayer to condone the delay of 20 days in filing the complaint. In fact complainant has examined the Manager Accounts as PW-1 and got marked Ex.P1 Medical certificate. However, the trial Court rejected the application and consequently dismissed the complaint as barred by limitation.

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The trial Court has failed to appreciate the reasons assigned for the delay. Complainant is having a good case on merit. No prejudice would be caused to the accused if the delay is condoned and complaint is restored to the file as it would get opportunity to controvert the case of the complainant and hence the appeal.

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After due service of notice accused appeared before the trial Court and contested the matter.

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Enquiry is conducted on the interim application,

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wherein complainant is examined as PW-1 and Ex.P1 is

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marked.

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Vide the impugned order, the trial Court has rejected the application for condonation of delay and thereby dismissed the complaint.

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Aggrieved by the same complainant has come up with this appeal contending that at the relevant point of time complainant was suffering from ill health and as such could not file the complaint in time. In the light of the decision of Hon'ble Supreme Court in Pawan Kumar Ralli Vs. Maninder Singh Narula ( Pawan Kumar Ralli)¹ , the trial Court ought to have taken a lenient view and condone the delay. No prejudice would be caused to the accused, as he would get an opportunity to defend himself. On the other hand the complainant would be put to great hardship

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if the appeal is dismissed and prays to allow the appeal.

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Heard and perused the record.

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1 Crl.A.No.1684/2014 dated 11.08.2014

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Thus, complainant prosecuted the accused on the allegations that the cheque issued by it towards repayment of a sum of Rs.3,14,485/- towards supply of goods came to be dishonoured for funds insufficient and after service of legal notice, when accused failed to repay the amount due, complaint was filed. However, there was delay of 20 days in filing the complaint due to the ill health of the complainant. However, the trial Court did not accept the reason for delay and dismissed the complaint.

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Having regard to the fact that legal notice was served on the accused on 23.06.2014, he had 15 days time to pay the amount due. After the expiry of 15 days from the date of service of notice, the complainant had 30 days time to file the complaint. The complaint came to be filed on 27.08.2014. There is delay of 20 days in filing the complaint. In order to prove that during the said period complainant was suffering from ill health, he has relied upon medical certificate to the effect that he was suffering from low back pain.

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The trial Court has refused to accept the reason for delay on the ground that during his cross-examination the complainant has stated that he went to the hospital in car for taking treatment and for some time he also attended his office and the other staff of the complainant/company were enjoying good health. As held by Hon'ble Supreme Court, in Pawan Kumar Ralli while considering the delay the Court should take liberal view to promote the ends of justice. In the present case, there is delay of 20 days in filing the complaint. In fact specific provision is made under the N.I. Act for condonation of delay. Having regard to the fact that the cheque amount is Rs.3,14,485/- and looking to the delay of 20 days, this Court is of the considered opinion that the delay is liable to be condoned and thereby complaint is required to be restored. No prejudice would be caused to the accused, as he would get opportunity to defend himself.

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When the appellant is seeking remand, he ought not to have waited all these years to enable the appeal to ripe for arguments. Whenever it is a case for

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remand, the learned counsel is expected to bring the said fact to the notice of the Court, so that, if it is a case for remand, valuable time would not be wasted in waiting the case to come up for final arguments. If this appeal was allowed and remanded during 2015 itself, by this time the trial Court would have disposed of the complaint on merits and appeal against it, would also have matured for arguments.

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In the light of the above discussion, I proceed to pass the following:

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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order dated 20.04.2015 passed in PCR.No.1349/2014 on the file of XXV ACMM, Bengaluru, is set aside. Consequently, application filed under Section 142 (b) of N.I. Act is allowed. The delay of 20 days in filing the complaint is

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condoned. Accordingly, the complaint is restored to file.

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(iii) The complainant and accused are directed

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to appear before the trial Court on 15.04.2024 without waiting for further notice from the trial Court.

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(iv) The trial Court is directed to decide the case in accordance with law, after providing reasonable opportunity to both parties.

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(v) Of course, if on 15.04.2024,

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respondent/accused fails to appear before the Court, the trial Court is at liberty to take coercive steps against him for securing his presence.

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List No.: 1 Sl No.: 66

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Sd/JUDGE

Elan Professional v. M/S Crown Culinax Pvt. Ltd.

Case brief

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Elan Professional v. M/S Crown Culinax Pvt. Ltd.

Case brief

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