Order 8

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 46 CC NI ACT 4636-2022
SORABH JAIN Vs. ARUN AGGARWAL
11.09.2024
Proceedings conducted through video conferencing via Cisco Webex
App.
ORDER
Present: Sh. Manish Kumar, Ld. Counsel for complainant.
Sh. Shubham Soni, Ld. Counsel for proposed accused.
1. Vide this Order, this Court shall decide the application seeking condonation
of delay filed on behalf of the complainant.
2. It is contended by the complainant that the legal notice in the case was delivered
to the accused on 11.02.2022 on the last known address of the accused person. The 15
days period for paying back the amount of the dishonoured cheque expired on
25.02.2022. Thereafter, the one month period for filing the instant complaint lapsed
on 27.03.2022. However, the present complaint has been filed on 27.04.2022 after a
delay of 30 days. It is averred that the delay was due to misplacement of the original
cheque and original return memo of the impugned cheque due to construction work
going on in the premises of the complainant. The documents were retrieved on
27.04.2022, hence the delay. On these grounds, Ld. Counsel for the complainant
seeks for condonation of delay.
3. The Ld. Counsel for proposed accused has vehemently opposed the application
stating that the present application is not supported by any documentary proof. The
Ld. Counsel for the proposed accused further argued that the story of the complainant
about the construction is baseless and cannot be relied upon. Further, no details of the
(Shivam Gupta)
Judicial Magistrate First Class
(NI Act) Digital Court-02
PHC, New Delhi
11.09.2024
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person who was incharge for keeping the safe custody of the original documents has
been annexed with the application. Therefore, the Ld. Counsel for the proposed
accused argued that the present application along with the complaint should be
dismissed.
4. Before proceeding further, it is first pertinent to deal with the relevant provision
under NI Act for condonation of delay. Section 142 deals with cognizance of offences
and proviso to Section 142(1)(b) deals with condonation of delay and the same is
reproduced below:
“142 Cognizance of offences. — (1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974) :, (a) no court shall take cognizance of
any offence punishable under section 138 except upon a complaint, in
writing, made by the payee or, as the case may be, the holder in due course of the
cheque; (b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to Section 138.
[ Provided that the cognizance of a 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 such period.]” (emphasis supplied)
5. It is pertinent to note that the provision of condonation of delay in filing the
complaint was added in the statute book by way of amendment. This Court is of
the opinion that the legislature intended that due to strict working of Section 138 of
NI Act, genuine claims of parties should not suffer. Further, the Hon'ble Supreme
Court in Birendra Prasad Sah Vs. The State of Bihar & Anr. Criminal Appeal No.868
of 2019 has held that delay can be condoned if sufficient cause is shown to the Court.
(Shivam Gupta)
Judicial Magistrate First Class
(NI Act) Digital Court-02
PHC, New Delhi
11.09.2024
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The law is settled that the Courts should take a liberal approach while dealing with
the question of condonation of delay.
6. In the present case, there is a delay of 31 days in filing the complaint, which as
per the case of the complainant is due to construction work which was on going in
their office and misplacement of original documents because of the same. It is correct
that the complainant has not annexed any proof regarding the same. As discussed
above, the law regarding powers of condonation is to be liberally construed. This
court is of the view that the complainant has sufficiently explained the delay in filing
the complaint. Therefore in the interest of justice and keeping in mind principles of
justice, equity and good conscience, the application is allowed.
Put up for PSE on 05.12.2024.
(Shivam Gupta)
Judicial Magistrate First Class
(NI Act) Digital Court-02
PHC, New Delhi
11.09.2024
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