JOY MON Vs. C SASIT LOVELY

JUDGEMENT

(1.) This Criminal Revision Petition is filed questioning the correctness of the order dated 25.11.2011 passed in Crl. M.P. No. 6647 of 2011 on the file of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai - 600 015. By the said order dated 25.11.2011, the Court below dismissed the application filed by the petitioner to condone the delay of 30 days in filing the Complaint under Section 138 of the Negotiable Instruments Act. According to the petitioner, he had handed over the returned cheque memo issued by the bank, copy of the statutory notice etc., to his counsel on record and requested her to file the complaint under Section 138 of the Negotiable Instruments Act, who in turn asked the petitioner to hand it over to one of her colleagues. Accordingly, the petitioner handed over the documents to the junior counsel on 09.05.2012. While so, the counsel on record due to viral fever, was admitted in hospital and bed ridden. The counsel on record could recover only during the first week of June 2011 and this had led to the delay in filing the complaint. Further, the court holidays intervened and therefore also the complaint could be presented only after re-opening of the Court after summer vacation. This, according to the petitioner, had led to 30 days delay in filing the complaint. In order to condone the delay of 30 days, the petitioner has filed Crl. M.P. No. 6647 of 2011 before the Court below and the same was dismissed.

(2.) The Court below issued notice to the respondent and the respondent also filed a counter opposing the petition. According to the respondent, the debt itself is a time barred debt. Further, the petitioner had alleged that the sum of Rs.4,00,000/- was borrowed during December 2006, and the same was acknowledged by an acknowledgment dated 10.06.2010, for which the cheque dated 30.09.2010 was issued. On presentation of the cheque on 02.11.2010, it was returned for the reasons 'insufficient funds'. Subsequently, the cheque was presented on 08.02.2011 and it was again returned for the same reason. Finally, the cheque was presented during 4th week of March 2011 and the same was dishonoured on 22.03.2011. After issuing a statutory notice on 26.03.2011, which was received by the respondent on 28.03.2011, the petitioner did nothing or taken any steps to file the complaint in time. It is the case of the petitioner that the respondent acknowledged the debt on 10.06.2010 that is after the limitation period is over. Further, the amount was borrowed during December 2006 and the three years period of limitation is over during December 2009. Therefore, the complaint itself is not maintainable and it cannot be entertained on the basis of a past debt acknowledged after the period of limitation by the respondent. The cheque itself was not issued for any legally enforceable debt and it cannot be entertained. Finally, under Section 142 of the Limitation Act and the proviso to Sub-section (b) of Section 142 of the Act, the petitioner can prove the existence of sufficient cause for not filing the complaint within the time and in the absence of the same, the complaint cannot be entertained. Merely because the counsel on record fell ill, it will not enure to the benefit of the petitioner to contend that the delay is bonafide and not wilful. In any event, the counsel for the petitioner was hospitalised only on 15.05.2011, whereas, the last date for filing the complaint was 13.05.2011. The admission of the counsel on record in a hospital will not cure the defect or it will entitle the petitioner to get the delay in filing the complaint condoned.

(3.) The Court below, after considering the rival contentions, dismissed the application filed by the petitioner for condonation of the delay of 30 days in filing the complaint on the ground that the reasons for condonation of delay are not bonafide and convincing besides that the petitioner has not filed any proof to show that his counsel on record fill ill at the time of filing the complaint. The medical records were produced only at the time of argument and therefore, the same will not entitle the petitioner to get the delay condoned. It was also held by the Court below that a time barred debt cannot be imposed or realised by any subsequent acknowledgment or agreement.