The litigant should not suffer for want of necessary prayers for condonation of delay: Bombay HC
Title: Praveen Otarmal Parmar v. M/s. Abhiroop Associates and Mr. Uday Raghunath Manerikar
Decided on: 7th AUGUST 2023
+ CRIMINAL APPEAL NO. 1045 OF 2006
CORAM: S. M. MODAK, J.
Facts of the Case:
The Court of 11th Jt. Judicial Magistrate First Class, Pune acquitted the respondent for the offence punishable under Section 138 of Negotiable Instruments Act vide judgment dated 23rd March, 2006 in Case No.298 of 2003. The complaint was not filed in time and hence respondent was acquitted. It was the complainant who has preferred this Appeal.
The appellant had first sent a notice on 31st Mar, 2006 and received no response from the firm or the partner. Notice was sent again on 16th April and 21st April to the firm and the partner respectively. Finally, he filed a complaint on 5th June. The trial court held that there was a delay of 4 days (time period calculated from 31 March) and therefore, the accused were acquitted.
Issues
- a) When the complainant filed the complaint on the basis of notice posted on second occasion, whether it was proper for the trial court to dismiss the complaint as time barred?
- b) Whether trial Court ought to have given an opportunity to the complainant to explain delay occurred?
Contentions
The appellant claimed that when the process was issued and when case has proceeded it was not proper for the trial Court to dismiss the complaint. It was obligatory on the trial Court either to condone delay on its own or ought to have given an opportunity to offer an explanation. They explained that the notices sent were not registered and were returned to him for being not claimed, which is why he sent fresh claims in the month of April. Thus, he explained this to be the right date from which the period of limitation should be calculated and also that the complaint was filed on the basis of second notice.
The Respondents supported the order and submitted that there is no duty cast upon the trial Court to condone the delay particularly when the complainant has not prayed for condonation of delay. The Respondents presented evidence that the notices were returned with the mark “intimation delivered.”
Decision
The Court held that since the prosecution under Negotiable Instruments Act is quasi-civil. The notices came back with the mark “unclaimed” and thus, the appellant needs to be given an opportunity to pray for condonation of delay. The Court added that the litigant should not suffer for want of necessary prayers for condonation of delay. Hence, the appeal was allowed.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written by- Aparna Gupta, University Law College & Dept. of Studies in Law