KAILASH ENGINEERS Vs. AUTO PINS INDIA LIMITED

JUDGEMENT

(1.) This revision is directed against the order dated 6.8.1999 passed by learned Metropolitan Magistrate whereby the complaint filed by the petitioner u/s. 138, 141 and 142 of the Negotiable Instruments Act, 1881 (for short the "Act") was dismissed as statutory notice was not given with 15 days from the dishonour of cheque.

(2.) Briefly stated, facts leading to this revision are that on 6.3.1999 petitioner filed complaint u/s. 138, 141 and 142 of the Act against the respondent alleging therein that respondent had purchased some material i.e. 10 pairs of main bearing on 18.12.1998 for which complainant raised its bill No. 647 dated 18.12.1998 amounting to Rs. 34,320/-. Respondent issued post dated cheque on 18.12.1998 bearing No. 379392 dated 28.12.1998 for Rs. 34,320/- against the said purchase. The cheque was presented for encashment on 29.12.1998 but the same was dishonoured by Banker's Memo dated 2.1.1999. The petitioner wrote a demand letter dated 2.1.1999 but of no avail. Petitioner served a legal notice dated 18.1.1999 (17.1.1999 being Sunday) to the accused but the payment was not made. Ultimately, the petitioner filed the said complaint on 6.3.1999. After recording preliminary evidence, the learned Metropolitan Magistrate passed impugned order dated 6.8.1999 dismissing the complaint because the legal notice dated 18.1.1999 was not served within 15 days from the receipt of information regarding return of the cheque unpaid. In coming to this conclusion, the learned Metropolitan Magistrate relied on the decision of this Court O.P. Chirania v. Dir. of Lotteries, 1998 IV AD (Delhi) 197 : 1998 (46) DRJ 537, wherein it was held that period of limitation of one month prescribed under Section 142 of the Act for taking cognizance of a complaint under Section 138 of the Act cannot be extended and delay in filing of complaint cannot be condoned. It was held that Section 142 of the Act opens with non obstante clause and therefore prevailed over the provisions of Section 473, Cr.P.C.. In an earlier decision of this Court in the case of Ram Richpal Gupta v. M/s. DCM Shriram Consolidated Ltd., 59 (1995) DLT 284, another single bench of this Court has taken the view that the delay in filing complaint under Section 142 of the Act can be condoned, was also taken note of. The contention of the learned counsel for the petitioner was that if delay in filing the complaint can be condoned, the delay in giving legal notice can also be condoned. As against this submission of the learned counsel for the respondent was that delay in sending legal notice within 15 days in incurable and the same cannot be condoned by the Court.

(3.) I have learned counsel for the parties and perused the record.