Srinagar, July 18, KDC: The High Court of Jammu and Kashmir and Ladakh has held that a complainant whose case under Section 138 of the Negotiable Instruments Act was dismissed solely because it had been filed prematurely is not left without a remedy and can maintain a fresh complaint after securing condonation of delay.
Allowing a revision petition, Justice Sanjay Dhar set aside an order of the Chief Judicial Magistrate, Srinagar, which had refused to condone the delay in filing a fresh complaint and remanded the matter to the trial court for consideration on merits.
The case arose after the petitioner had initially instituted a complaint before the Chief Judicial Magistrate, Handwara, alleging commission of an offence under Section 138 of the Negotiable Instruments Act. The complaint ultimately failed because it had been filed before expiry of the mandatory 15 day period following service of the statutory demand notice, even though the High Court had earlier set aside the findings recorded on merits.
After presenting a fresh complaint along with an application seeking condonation of delay under Section 142(b) of the Act, the petitioner argued that the period spent bona fide prosecuting the earlier proceedings, including the appeal before the High Court, ought to be excluded while computing limitation. The Magistrate rejected the plea, observing that the complainant had failed to explain the delay of more than six years.
Justice Dhar found that approach legally unsustainable.
The Court held that the Magistrate had misconceived the effect of the earlier proceedings by relying upon findings which had already been set aside by the High Court. Once those findings ceased to exist in the eyes of law, they could not influence consideration of the fresh complaint, the Court observed.
Relying extensively on the Supreme Court’s decisions in Yogendra Pratap Singh v. Savitri Pandey and Gajanand Burange v. Laxmi Chand Goyal, the High Court reiterated that where a complaint under Section 138 fails because it was instituted before expiry of the statutory waiting period, the complainant’s remedy lies in filing a fresh complaint and seeking condonation of delay by demonstrating sufficient cause. The Court noted that the Supreme Court had specifically recognised exclusion of the period spent prosecuting the earlier proceedings in such circumstances.
Applying those principles, Justice Dhar observed that the petitioner had acted promptly after the earlier appeal was decided. The certified copy of the judgment had to be obtained and the original cheques had to be retrieved from the trial court before the fresh complaint could be filed. The Court concluded that the delay had been satisfactorily explained.
The judgment also contains strong criticism of the trial court’s reasoning. Justice Dhar held that the Magistrate had ignored the relevant legal position and “acted with material irregularity”, adding that the findings recorded were “perverse” and the result of “wrong appreciation of facts and the law.”
Setting aside the impugned order, the High Court directed that the delay in filing the fresh complaint shall stand condoned and remitted the matter to the Chief Judicial Magistrate, Srinagar, for fresh consideration on merits in accordance with law. (KDC)
