P. RAJU Vs. U. RAM BABU

JUDGEMENT

(1.) The petitioner, who is arrayed as accused in unnumbered C.C. No. 2010 filed by the respondent under Section 138 of the Negotiable Instruments Act, has come forward with this Criminal Revision Case challenging the order dated 02.06.2011 passed in M.P. No. 1642 of 2010 by the learned IX Metropolitan Magistrate, Saidapet, Chennai, by which the petition filed by the respondent, for condoning the delay of 67 days in filing the complaint, was allowed.

(2.) According to the respondent, he entered into a Memorandum of Understanding with the petitioner on 24.12.2007 for negotiating the sale of lands with prospective buyers. As per the Memorandum of Understanding, the petitioner paid a sum of Rs.90,00,000/- by way of cheque to the respondent and agreed to complete the terms of the agreement within 150 days from the date of signing the Memorandum of Understanding. Since the petitioner could not fulfill the terms of the agreement dated 24.12.2007, another agreement came to be entered into on 08.08.2008 which provides for return of the advance amount of Rs.90,00,000/- together with liquidated damages of Rs.35,00,000/-. As per the agreement dated 08.08.2008, the petitioner issued three cheques dated 09.09.2008, 14.09.2008 and 19.09.2008 for Rs.45 lakhs, Rs.45 lakhs and Rs.35 lakhs drawn in favour of the respondent. Even though the cheques were drawn during September 2008, at the request of the petitioner, the respondent did not present the cheques till 17.01.2009. Thereafter, the respondent presented the cheques for encashment, but they were returned for the reasons "insufficient funds". On 10.02.2009, the respondent issued a statutory notice calling upon the petitioner to repay the cheque amount. On receipt of the notice, the petitioner sent a reply dated 22.02.2009 denying his liability to pay the cheque amount. Thereafter, the respondent has filed the aforesaid unnumbered complaint under Section 138 of the Negotiable Instruments Act.

(3.) The learned counsel for the petitioner mainly contended that the revision petitioner has originally filed the complaint before the learned VII Metropolitan Magistrate, who has no jurisdiction to entertain the complaint. When the complaint was filed with a delay of 6 days in filing the same, it was not accompanied by a petition to condone the delay. Since the complaint itself was filed beyond the period of limitation, that too before a Court which has no jurisdiction to entertain the same, the learned IX Metropolitan Magistrate, ought not to have entertained the complaint or condoned the delay in filing the complaint. According to the learned counsel for the petitioner, the provisions contained in Section 14 of the Limitation Act will not be of any use to the present complaint inasmuch as the one month time granted under Section 142 of the Negotiable Instruments Act cannot be extended by the Court. If at all there was any delay, it can be condoned only upto a period of one month and not beyond that period. The learned counsel for the petitioner further contended that the delay in filing the complaint was not 6 days or 67 days as claimed by the respondent, but the delay, if properly calculated, will be 366 days from the date of presentation of the complaint namely 02.04.2009 till 11.03.2010, on which date, the complaint was presented before the learned IX Metropolitan Magistrate, Chennai. Therefore, the Court below was misled by the respondent with respect to the delay in filing the complaint. Therefore, he prayed for setting aside the order passed by the Court below.