VIJAY SINGH GUPTA Vs. SURESH KOTHARI

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment dated 24.4.2012 passed by the Judicial Magistrate First Class, Durg in Complaint Case No.351 of 2012, whereby the Respondent/accused has been acquitted of the charge framed under Section 138 of the Negotiable Instruments Act, 1881 (henceforth 'the NI Act').

(2.) This appeal was filed by Complainant Vijay Singh Gupta. During pendency of the appeal, he died and his legal representatives have been brought on record.

(3.) Facts of the case, in brief, are that both deceased Complainant/Appellant Vijay Singh Gupta and acquitted accused/Respondent Suresh Kothari were well acquainted with each other. On 10.1.2006, on demand made by the Respondent/accused, the deceased Complainant gave him cash of Rupees Ten Lakhs. As a refund, the Respondent gave a cheque bearing No.332906 of Central Bank of India to the Complainant. Again, when the Respondent was in need of money, the Complainant gave him cash of Rupees Ten Lakhs on 10.2.2006. As a refund, the Respondent gave a cheque bearing No.332097 of Central Bank of India to the Complainant. The Complainant presented both the cheques for encashment on 29.6.2006. On 30.6.2006, the Bank informed the Complainant about non-availability of sufficient fund in the account of the Respondent. On 11.7.2006, the Complainant sent a legal notice to the Respondent through registered post, which was delivered to the Respondent on 13.7.2006. But, despite receiving the notice, the money was not refunded to the Complainant. Thereafter, the Complainant filed a complaint case before the Judicial Magistrate First Class, Durg on 29.8.2006. On 8.1.2007, the Court ordered issuance of notice to the Respondent/accused by registered and ordinary modes. During pendency of the said complaint case, on 9.12.2010, Counsel for the Complainant filed an application for condonation of delay in filing the complaint case making a submission that the complaint case should have been filed on 28.8.2006, but the same was filed on 29.8.2006 and due to the bona fide mistake there was a delay of 1 day in filing the complaint case. On 4.3.2011, the Judicial Magistrate First Class, Durg rejected the application for condonation of delay. While passing the order, the Judicial Magistrate First Class observed that the Complainant was already examined and cross-examined before the Court. There seems to be a genuine reason for delay of 1 day in filing the complaint case and the delay seems to be a mistake on the part of the Counsel for the Complainant. It was further observed that it is also true that a party should not suffer for the mistake of his Counsel, but allowing the application for condonation of delay at this stage would mean going back to the preliminary stage of the case. It was also observed that the case has already been registered on 8.1.2007 and the Court does not have power to review its own order. Therefore, despite there being the fact that the Complainant should not suffer for the bona fide mistake on the part of his Counsel, the application for condonation of delay moved at this stage cannot be allowed by the Court and the Judicial Magistrate First Class fixed the case for examination of other witnesses of the Complainant. Thereafter, on 24.4.2012, vide the impugned judgment, the Judicial Magistrate First Class dismissed the complaint case on the ground of 1 day's delay and acquitted the Respondent/accused. Hence, this appeal.