The Tripura High Court in the case of Sri Sumit Deb vs Sri Joy Deb (CRL. A. NO.09 OF 2020) upheld that to avail the benefit of proviso to Section 142(b) of the NI Act the complainant is mandated to file an application for condonation of delay explaining sufficient and satisfactory reasons for such delay since the said proviso appended therein is substantive and not only procedural.
Facts of the case: The complainant was a professional contractor, whereas, the accused was the owner of one mixture plant situated at Bodhjungnagar. According to the complainant, both the complainant and the accused were known to each other for their business transactions. In the month of November, 2014, the complainant supplied stone chips to the accused amounting to Rs.5,00,000/-(Rupees five lakhs) only on credit with the assurance of repayment of the same. Thereafter, the accused issued one cheque for an amount of Rs.5,00,000/- (Rupees five lakhs) complainant-appellant presented the cheque with the banker, and the same was returned back through a memorandum as “payment stopped by drawer’. Accordingly, the cheque became dishonored. Thereafter, the complainant issued a demand notice but, despite service of the legal notice, the accused failed to make the payment of the said amount to the complainant within 15 days of the receipt of the said notice, resulting to filing of the present complaint case under Section 138 of the NI Act against the accused.
The case of the appellant-complainant was dismissed with the observation that in filing the complaint there was a delay of 10 (ten) days and the matter proceeded without condoning the delay as apparent on the face of the record. Consequently, the respondent no.1 was acquitted.
Judgment : Learned counsel contended that proviso to Section 142 (b) of the NI Act would not suggest that there should be a separate petition for condoning the delay. To reinforce his contention, learned counsel tried to persuade this court that since the court proceeded with the trial, the matter of condonation of delay would be deemed to have been condoned.
The court held that there was a delay of 10 days in filing the complaint by the complainant. In that situation, in terms of the proviso of clause (b) of sub-section (1) of Section 142 of the NI Act, the court would take cognizance only when the complainant would be able to satisfy the court that he had sufficient cause for not making the complaint within such one month.
The court did not agree with the submission of learned counsel appearing on behalf of the complainant that since cognizance of the complaint was taken by the learned trial Court, and culminated with trial, the matter of condonation of delay would be deemed to have been condoned, particularly, for the reason that the Court must have taken into consideration the statements made in the complaint itself regarding the delay caused in filing the complaint by the complainant. The complainant must take recourse to Section 142(b) of the NI Act, which is a safeguard given by the legislature to those honest and legitimate holders of the cheque who could not, for cogent reasons, file the complaint within 30 (thirty) days. So, to avail the benefit of proviso to Section 142(b) of the NI Act the complainant is mandated to file an application for condonation of delay explaining sufficient and satisfactory reasons for such delay since the said proviso appended therein is substantive and not only procedural.
JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY