B DEY Vs. JAYSON INTERNATIONAL

JUDGEMENT

(1.) THIS is a petition under Section 482 CrPC seeking quashing of the impugned order dated 12th October, 2009 passed by the learned M.M., Delhi, condoning the delay in filing of the complaint under Section 138 N.I.Act and the consequent order dated 09th November, 2009 issuing process against the petitioner for appearance and undergoing trial under Section 138 N.I.Act.

(2.) BRIEFLY stated, facts relevant for this petition are that the respondent M/s. Jayson International, a partnership firm filed a Crl.M.C. No. 309/2010 Page 1 of 5 complaint under Section 138 N.I.Act against the petitioners alleging that petitioners had issued a cheque bearing No. 873026 for ` 1,79,223/- dated 22nd September, 2008 against the discharge of the existing liability. The cheque when presented for collection was dishonoured and it was returned with a memo of the bank with the remarks "Fund Insufficient". Respondent firm issued a notice of demand under Section 138, N.I.Act to the petitioner and the petitioner, despite of service of notice, failed to pay the demanded cheque amount within the requisite period of 15 days from the date of service. This led to the filing of the complaint.

(3.) LEARNED counsel for the petitioners has submitted that the impugned order of learned M.M. dated 12th October, 2009 is bad in law for the reason that it is a non-speaking order and it is passed without considering if the delay has been sufficiently explained. It is submitted that petitioner sent a response dated 12th January, 2009 to the demand notice claiming that the goods supplied by the respondent were of sub-standard and requested the respondent to take back his goods. LEARNED counsel argued that the demand notice was served on the petitioner on 05th January, 2009, otherwise also, reply to demand notice sent to the respondent is dated 12.01.2009 from which, it is obvious that in any case the notice of demand was received by the petitioners latest by 12th January, 2009. Even if the aforesaid date is taken as date of receipt of demand notice by the petitioner, the petitioner was supposed to make payment of the demanded amount by 27 th January, 2009 and in view of the alleged failure of the petitioner to comply with the demand notice, the respondent was required to file the complaint under Section 138 N.I.Act within a period of one month i.e. latest by 27th February, 2009. LEARNED counsel argued that on perusal of the application for condonation of delay, it would be seen that in the application, explanation for delay with effect from 01st March, 2009 onwards is given, but there is no explanation as to why the complaint was not filed on 27th February, 2009 or 28th February, 2009. Thus, it is urged that the impugned order of learned M.M. dated 12th October, 2009 is untenable and the petition under Section 138 N.I.Act is hopelessly time-barred in view of the proviso to Sub- Clause (b) to Section 142 of N.I.Act.