Allowed

E. Munichandra Goud, Mahabubnagr Dist. v. P.P., Hyd and Ano

Telangana HC19 Sept 2022CRLRC/1045/2016

Case brief

AI extract

What is this about?

This High Court allowed a criminal revision petition challenging a trial court order that dismissed a Section 138 complaint due to a 133-day delay. The revision court held there were no grounds to suspect the complainant's explanation for the delay, affirmed the statutory notice was issued within time, and quashed the impugned order, directing restoration of the complaint.

What did the court decide?

The order dated 15.02.2016 was set aside and the complaint was restored to the file of the Trial Court.

E. Munichandra Goud, Mahabubnagr Dist. Vs P.P., Hyd and Ano — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE NINETEENTH DAY OF SEPTEIVBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL REVISION CAS E NO: 104s oF 2016

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criminar Revision case fired under sections 3g7 and 401 0f cr.p.c aggrieved by the order dated. 15.02.2016 passed in criminar M.p.No. 31 of 2015 in unnumbered c.c.No. of 2014 0n the fire of the court of the Judiciar Magistrate of First Class, at Mahabubnagar.

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Between:

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AND

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E. lt/unichandra Goud. S/o Narayana Goud, Occ.Business, Ryo. Chagadana Vil ta ge, Gattu Ma nda t, Vatra UuOnlgai D-isi;;i. -'" ""'' ...petitioner/Complainant

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1 The State of Telanana. renresented by the public prosecutor, High Court of Judicature. at Hyderabad forihe Saatioii"rJisir"Jii.,? the State of Andhra Pradesh,

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2 Akkala Jaohan Goud. S/o. Kistanna Goud, aged lvlalor. Occ:Business, R/o H. No 46_ 1 0 1, KDR Nagar, Wana-p-ariny i6*ii, ril jilOrOr"qai6i.t,i"t. ...RespondenUAccused

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LA. NO: 1 OF 2016( CRLRCMP. NO: 1527 O F 2016)

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Petition under section 4g2 cr.p.c praying that in the circumstances stated in the grounds filed in support of the criminal Revision case, the High court may be preased to suspend the orders dated 15-2-2016 in crr.Mp.No. 3.1 0f 2015 in cc No' of 2014 0n the fire of the First crass Judiciar Magistrate , Mahabubnagar, pending disposal of the main Criminal Revision Case.

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Counsel for the petitioner: SRI V. V. NARASIMHA RAO

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Counsel for the Respondent No.1: THE pUBLIC PROSECUTOR (TG)

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Counsel for the Respondent No.2: SRI RAVI SHANKAR JANDHYALA

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The Court made the following: ORDER

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'l lI1,. IIO\OtlR..\lll.la l)lt..ltlS'l'l'LE G. R,{l)llA It,\NI

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(lrinrinal lLer ision (lase No.10.15 of 20I (r

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ORDER:

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'fhis ('rirninal i{cvision case is pr,:fered by the coml-llainant under Scctiorls 397 & 401 ol'Climinal Procedure Code. 1963 aggrieved hy the ordcr dated 15.02.2016 passed in Criminal M.P.No.3l ol 2015 in un-nunrbered C.C. of 2014 on the file of Judicial Magistrate of First Class, Mahatrubnagar.

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Crirninal M.P.No..il ol 2015 in un-numbered C.C. ol 2014 was filed by the cornplainant under Section 142(b) of Negotiable Instrurnents Act, I 88 I to condone the delay of ( 133) days in filing the coniplaint.

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The parties herein will be relerred to as per their array in the trial Coun

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The case of the cornplainant in brief was that he filed a complaint under Section 138 ol N.l. Act as the accused ohtained financial assistance from him lor a sum of Rs.l3 lakhs and promised to pay the amount on his demand. When the cornplainant

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deman<icd lhe^{accusccl, the accused issuecl a chequebearing} No.00l 162,^{dated 04.06'2014'drawn on AxisBank'} Mahahubnagar.^{The complainant presentcd the saidcheque [br} collection on^{I 6.06.201 4, but the bank issueda Mernothat the} accused closed^{the account with the said Bank' Therefore'the} complainant^{issued a lr:gal noticc to the accusedon 08'07'2014'} and the same^{was received by the accused, and gave reply thereto} on l5.0T.20l4.^{Thereaiier, the cornplainantgave the papers to his} counsel for^{preparationof cornplaintunderSection138 of N'l' Act'} Since the cornplainant^{was suffering with bone injury' and was} unable to^{movefromthe bed, he informedthesarneto his counsel'} But his counsel^{statedthat the swom-in-affidavitbefore the} concerned^{Magistratewas essential, and his presencein Couft was} necessary while^{subrnittingthe case' Afterhe wasable to move' he} met his Advocate^{again. But, the said Advocate informedhirnthat} therewasadoubttobeclarifiettaStowherethecornplainthadto be irled as^{the matter was before the Hon'ble Apex Courtand} askedlrirntowaitforsotnetime.Thereafter,thecounselinformed the cornplainant^{that the cornplainthadto be filed before the Court} where the cheque^{was drawn. Accordingly, complaintwas filed}

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::-l: : itt\tr

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rvith a clelav of (l-j3) days, and praycd the Court belor.v to condone tltc saitl dolay. Thc cornplainanl lurther submitted that if the delay was not condoned, he u,oultl have to loo:;e Rs. Ii lakhs.

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The accused tlled counrer-affidavit in Criminal M.p.No.3l of 2015 in un-nurlbered C.C. of 2014 contending that he never borrowed any alnount lrorn the cornplainant and never issue<i any cheque.

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On hearing both counsel, the trial Court, by order dated 15.02.2016, dismissed Crirrrinal M.P.No.3l of 2015 in unnumbered C.C. of 2014 by observing that the complainant had not given satisfactory explanation, and that the documents filed by the cornplainant appeared to have been created for the purpose of the CASC.

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Aggrieved thereby, the cornplairrant preferred the present Revision contending that the Courl belorv disrnissed the petition on conjectures; the order passed by the trial Court was not in accordance with law and was against principles of natural justice; in fact, the accused filed a case against the cornplainant stating that the cornplainant had stolen the cheque; basing on his complaint, a

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crirninal case \'ns bookccl in l).S., Gadtval^'l orvn^{videI'.l.R.No. 137} of 2014, dated 2107.i0141 but,^{tlre said case u'as closed as a} 'mistake of fact' on 3 1 . 1 2.2014 by the P.S. Gadrval; the accused intentionally closed the account with thc bank^{to avoidrnaking} payment to the petitioner; the trial Cout ought to have noticed^the said fact; the complainant issued llotice through^{his counselwithin} the time, but unlortunately he was bed-ridden^{due to bone injury} and also filed a nredi<:al certificate in^{proof theieof; the Court} below, without takinl; into consideration the^saidaspects, disrnissed the petition; and^prayed this Court to allow^{the Revision} by setting aside the order dated 15.02.2016^passed in^Crirninal M.P.No.31 of 2015 in un-nutnbered C.C. of^{2014 on the file of} Judicial Magislrate of First Class. Mahabubnagar.

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Heard the leamerl counsel for the cotnplainant. There^{is no} representation on behall'of the accused..

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Leamed counsel for the cornplainant relied upon^the judgments of the Hon'ble Apex Court in Pawan Kumar Ralli vs.

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Nlanin<lcr Singh N:rrular, u,herein it^rvas hclcl al para No.22 as

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rr nrlc r

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"22 ltt thc ltt,orliur litcls a d circult.\l(ncat ol tltL'Lrt.sc, :rhile kc<'ltirtg iu uind th<, lcgi-rktive intenl ot(l thc :;pt,t ilit. ltleu of tht appellont raised in the grounds.for the Slteciul L<ata Pdition thot Itc slunkl huve been allov,ed n m(iye o eppli('etiou .for condonulio ofdeluy before the Triol Curt as the resporuleut hos nol .suffcred any preiudice by reason r{25 davs lelov, \v stt.o gl.v .[ccl^{thut lhe appellontsltould not have beer depritadol tltc} remed.v provided by the Legislature. ln .fact, tlte remedy so proviiul u,tts to enable a genuine lititiqnt to pursue his utse goinsl u defoulter by overcoming tht technical li./ficulty of limilalion. Hence, lhe High Court has cttmmitted an crror b! nol consklering the issrrc of limilation on merits."

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The learned counsel for the complainant also relied on the decision of the Hon'ble Apex Court in Birendra Prasad Sah vs. State of Bihar2, wherein the delay in instituting the cornplaint was condoned by the Hon'ble Apex Court.

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I l. As seen frorn Section 142 (b) of N.I. Act, it puts a limitation on the porver of the Court to take cogni:rance of the offences. The salne is extracted hereunder :

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| 20l.r (7) scJ 138 (D.8.)

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'^{:o to t-l} lscy^so6

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"112. Cognigtrtcc of oflences : Notrithstd.litg ttrr,-thing cottltrined in tlrc Cttclc of^{(lrintintl Proccdurc.197-1(2 oJ} l97a)^'

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kt) no toLrrl slrull ttrl;, t',t1Ltti:ttttLt: ol an.1, o.flc^{nt'c pttnishttblt'} tttulcr Sccliorr l3ll ctc(l)l ttlon tt L()t)tl)l(tittl,^{itt trt-ilirtg, tttodcby th<:} pulae or, tts tltc crtt' trtttt ltt:. lltt: Jtrtldt:r in cluc t:outsc of th<: ch ccyLe ,.

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(b) suclt contpluint is ttodc v,ilhin o c^{tno,tlh of the clate on} wltich the cdLtse of oclion uriscs ttntler clause^(c) of tlte^provisoto Section I38:

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Provided that the cognizance of a complaint may be^{taken bythe} Court after lhe prescribad^periocl, i.f the complainant^{sutis.t'iesthe} court that he lrud sulficient cutse for not moking contplaint^withirr such period.

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@ o Court infrrior to thel of u Metropolitan Megistrate or a Judicial Magistrqtc ol the First Class shall try any offence punishable under Scctiot lJx

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The Hon'ble Apex Court in Pa*'an Kumar Ralli⁽¹ supra), observed that proviso ir; appcnded to Clause (b) of Section 142 of the Act to overcorne the technicality of limitation^period. The Staternent of Objects and Reasons appended to the Amendrnent Bill, 2002 would suggest that the introduction of this^proviso was to provide discretion to the Court to take cognizance of offence even after expiry of the periul of lirnitation.

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::'1::

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In the^{prcsent case,tlie cotnplainaut hatl exlllairledthe} rea-sotts ttrr not approaching^{the Court within the tirne stipulatecl,} ancl hacl also cnclosed^{the rnedicalceflillcate in supporlof itNo} findings were^given by^{the trial Courl to suspectthesaicl docunrent'} It only stated that the^{docutnentappears to be created tbr the} purl)ose ol the case. Assuming for^{the sake of argunrent that the} cornplainant had created^{docunrent for the purposeol the case, the} complainant would have^{produced the rnedical cellificatefor the} entire period ofdelay.^{But, he had produced the rnedical cefiificate} only for a^paft ofthe^{periodof the delay,andhad given explanation} therefor with regard to^{the doubt expressedby his counsel as to} where the cornplaint^has to be^{filedevenafter his becoming rvell.}

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In view of above, this^{Courldoes not find any grounds to} suspect the reasons^{given by the cornplainant for the said delay'}

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If the delay^{is condoned,the m,rttercouldhe decided on} rnerits and no^{prejudicewouldbe caused to anyof the parties'By} not condoning the delay,^{the complainantwould be losingthe} cheque arnount of^{Rs.13lakhs though he had compliedwith the} other provisions of^{issuing the statutorynotice within the stipulated} period and also cornplied with^{other ingredientsof the Act'}

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1 \

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:: il::

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As suclr, it is considered llt to rcl asidc thc older^dated 15.02.201(r passcd in Crinrinal M.['}.No.31 of ]015 iu utr-trutnbcrctl C.C. ol 2014 on the lile ol .ludicial Magistrate of First^Class, Mahabubnagar, on condition of paynent of Rs.5,000/- by^the complainant to the S,ecrctarl, l{igh Court Legal Sen^iccs Committce, High Court Buildings, I 11^de rabad ri'ithin a^pcriod of two (02) weeks frorn the date of receipt of^a copy of the order

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Accordingly, the Civil Revision Case is allowcd, and^the cornplaint is restored to the file of the Trial Court.

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As a sequel, miscellaueous pctitions pending, if any, shall

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stand closed.

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Note

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This order is amended as per court order date on 02.12.2022 in IA No.1 of 2022 in the operative position of the order dated 19.09.2022 in cRLRc.No.1045 of 2016 the words "Secretary, High Court Legal Services Committee, High Court Buildings, Hyderabad" be substituted in place of "High court Legal Services Authoritv"

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SD/. K. SRINIVASA RAO JOINT REGIdTRAR //TRUE COPY// SECTION OFFICER"1,

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