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High Court of KeralaSingle JudgeRevision allowed; delay condoned; matter to be ...

Premnath v. Subindas and State represented by Public Prosecutor, High Court of Kerala

Case / Petition Number:Crl.R.P.No.1752 of 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Ramakrishnan
Judgment Date
2014-11-27
Court Decision / Holding
The revision is allowed. The order dismissing the complaint on the ground of limitation is set aside, the delay is condoned, the Magistrate is directed to take back the complaint on file, proceed with the enquiry under Sections 200 and 202 CrPC, and dispose of the matter on merits in accordance with law. The complainant is to appear on 15-12-2014 and the office is to communicate the order accordingly.
Final Disposition
Revision allowed; delay condoned; matter to be proceeded with on merits before the trial court.

Parties to the Case

Appellants / Petitioners

  • Premnath

Respondents

  • Subindas
  • State represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. K. Lasitha

Counsels for Respondents

  • • Adv. M.R. Reena
  • • Public Prosecutor Sri. N. Suresh

Case Synopsis & Summary

Premnath, the complainant, filed a criminal revision under Section 397 read with 401 CrPC challenging the Judicial First Class Magistrate, Vatakara’s dismissal of a complaint under Section 138 NI Act for delay in filing. The complainant alleged that the first respondent borrowed Rs 70,000 and issued a cheque which bounced for funds insufficiency; despite notice, payment was not made. There was a delay of 114 days in filing the complaint, explained by misplacing the cheque and recovering it later, with an asserted illness of the complainant, who is described as a poojari. The Magistrate dismissed the complaint on the ground of limitation, relying on Kishco Ltd. v. Vincent (2012(3) KLT (SN) 112), which held that delay reasons must be satisfactory. The revision petitioner contended the delay arose from misplacement and recovery and requested condonation under the proviso to Section 142(b) NI Act so the case could be considered on its merits. The respondent argued the delay explanation was unsatisfactory and lacked documentary proof of illness. The High Court distinguished Kishco, noting the current circumstances involved both parties appearing and arguing, and not mere lax prosecution. It allowed the revision, condoned the delay, and directed the magistrate to restore the complaint, proceed under Sections 200 and 202 CrPC, and hear the matter on merits.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Proviso to Section 142(b) of the Negotiable Instruments Act, 1881Section 200 of the Code of Criminal ProcedureSection 202 of the Code of Criminal Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends the 114-day delay in filing the complaint was caused by a genuine misplacement of the cheque, which was recovered later, and that the complainant was ill during the period. He argues the court should exercise discretion under the proviso to Section 142(b) NI Act to condone the delay so that the case is considered on its merits, particularly since both parties appeared and argued before the court below. He relies on the need to prevent injustice and to ensure merit-based adjudication rather than dismissal on technical delay. He emphasises that the delay does not indicate indifference to prosecution and that the delay occurred under unusual circumstances, justifying restoration of the complaint.

Contentions of Respondents

The respondent contends that the delay explanation was not satisfactory and lacked specific dates or corroborative documents of illness or misplacement. He asserts Kishco Ltd. v. Vincent is distinguishable and should not control the decision. He urges that acceptance of delay would undermine timely prosecution and erode confidence in the process. He argues that the magistrate’s order dismissing on limitation should be sustained unless conclusively shown otherwise, and that the revision petition lacks merit given the delay.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Kishco Ltd., v. Vincent2012(3) KLT (SN) 112DistinguishedThe court notes Kishco held that delay must be satisfactorily explained; however, it distinguishes the present case on facts since both parties appeared and argued, and the delay arose from misplaced/recovered cheque and asserted illness, not indifference, thus Kishco is distinguishable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 1752 of 2014 ()** **-------------------------------------AGAINST THE ORDER IN CMP 17086/2013 of J.M.F.C.,VADAKARA, DATED 04-08-2014** ## **REVISION PETITIONER(S)/CRL.REVISION PETITIONER/COMPLAINANT:** **-----------------------------------------------------------------------------------------------------** **PREMNATH, AGED 36 YEARS,** **S/O VASUDEVAN NAMBOOTHIRI, KAKKAT CHERIYA ILLAM, ERAMALA, (ORKKATTERI PO, VATAKARA), KOZHIKODE DISTRICT, KERALA.** **BY ADV. SMT. K.LASITHA** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. SUBINDAS,** - **S/O BABU, VALIYA VALAPPIL THAZHA KUNI (H), VELLIKULANGARA P.O, ORKKATTERY, VATAKARA, KOZHIKODE DISTRICT, KERALA.** ## **2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **R1 BY ADV. SMT. M.R.REENA R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.1752 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 27[th] day of November, 2014 ## **O R D E R** The complainant in Crl.M.P.No.17086/2013 on the file of the Judicial First Class Magistrate Court, Vatakara, is the revision petitioner herein. The revision petitioner, filed the complaint alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, first respondent borrowed a sum of 70,000/- and₹ issued the disputed cheque, which when presented was dishonored for the reason 'funds insufficient' and in spite of notice issued, the amount was not paid and thereby first respondent had committed the offence punishable under Section 138 of the Negotiable Instruments Act. 3. There was a delay of 114 days in filing the complaint and it was mentioned in the complaint that he had mis-placed the cheque and he could not trace out the 2 Crl. R. P.No.1752 of 2014 cheque and only later it was recovered and then he filed the complaint and that was the reason for the delay. 4. First respondent appeared and filed detailed counter. Both sides submitted that, there is no evidence and learned magistrate relying on the decision reported in [ **2012(3) KLT (SN) 112, case No.113] Kishco Ltd., v. Vincent** , dismissed the petition, on the ground that the delay has not been explained. Aggrieved by the same, the present revision has been filed by the revision petitioner/complainant before the court below. 5. Since the respondent had appeared, this court felt that, the revision can be admitted and disposed of after hearing the both sides today itself. So the revision is admitted, heard and disposed of today itself. 6. The counsel for the revision petitioner submitted that, the cheque was mis-placed and it was recovered only later and that was the reason for the delay and he prayed for allowing the revision to give him an 3 Crl. R. P.No.1752 of 2014 opportunity to meet the case on merit. 7. The counsel for the respondent submitted that, the reasons stated by him is not satisfactory. Further he had not mentioned, as to whether he mis-placed the cheque and when he recover the same etc., Though it is mentioned in the complaint that he was ill, he had not produced any document and during that period he was working as a priest in the temple. 8. It is an admitted fact that the revision petitioner herein filed Crl.M.P.No.17086/2013 against the first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. It is also an admitted fact that, there was a delay of 114 days in filing the complaint. So notice has been issued before taking cognisance of the complaint to the first respondent to decide the question of delay and the first respondent appeared and filed objection. It is mentioned in the complaint that, he had mis-placed the cheque and he could trace out the cheque only recently and 4 Crl. R. P.No.1752 of 2014 that was the reason for the delay. It was also mentioned in the complaint that he was also a sick person, but that was opposed by the counsel for the first respondent on the ground that he had not produced any document to prove his illness. Further except vague allegations, it was not specifically mentioned as to when the cheque was misplaced, where he had mis-placed and when it was recovered etc., Proviso to Section 142(b) says, provided that, the cognisance of the complaint may be taken by the court, after the prescribed period, if the complainant satisfies the court that, he had sufficient cause for not making the complaint within such period. Such a right was not given earlier. So the discretion has been given to the courts to condone the delay in filing the complaint, if satisfactory reason was given by the complainant for the delay. 9. In the decision relied on by the court below, namely, **Kishco Ltd., v. Vincent (2012(3) KHC (SN) 112 Page No.113)** cited (supra) this court has held that, the 5 Crl. R. P.No.1752 of 2014 reasons stated by the complainant for the delay in filing the revision must be satisfactory also. In that decision, neither the complainant nor his representative had appeared before the court below, except filing a complaint with a delay condonation application. They were never interested in prosecuting the case as well. So under the circumstances, this court has come to the conclusion that the complainant was not diligent in prosecuting the case and sustained the order dismissing the complaint by the court below on the ground of limitation. But that was not the case here. The revision petitioner and the first respondent appeared and it is only after hearing both sides that the impugned order has been passed. So under the circumstances, it cannot be said that, he was not diligent in prosecuting the complainant as observed in the decision relied on by the learned magistrate. 10. Further the possibility of mis-placing the cheque and getting it back later, in a normal circumstance 6 Crl. R. P.No.1752 of 2014 cannot be ruled out. It is true that the person must be careful in keeping such documents. Considering the status of the parties, that he is a poojari, the possibility of misplacing the cheque cannot be ruled out. If he can able to say where the cheque is kept as observed by the court below, and that was submitted by the counsel for the first respondent, then there is no question of mis-placing the cheque arises. Since he was not aware of the place where it was kept, he could not trace out the same immediately and file the complaint. So under the circumstances, the court below was not justified in dismissing the complaint on the ground of limitation, especially when reasons have been stated by the complainant in the complaint which possibility cannot be ruled out also. Further it is settled law, that court must always be liberal in considering the application for delay, unless court is satisfied that he was so indifferent or reckless and without any reason he did not file the complaint in time, then alone the complaint can be 7 Crl. R. P.No.1752 of 2014 dismissed on the ground of limitation. The principle while considering the question of taking cognisance after the period as provided under Section 468 to 473 of the Code of Criminal Procedure has to be applied here also and the ultimate aim is to prevent crime and strengthen criminal administrative system and advance justice. But at the same time, this court feels that, on account of the delay, there was some inconvenience caused to the other side as well, which will have to be compensated by payment of cost. That will meet the ends of justice. So the revision can be allowed on payment of the cost of 1,000/- to the counsel₹ for the respondent. But the counsel for the revision petitioner submitted that she is prepared to pay the cost today itself. Call at 1.45 p.m. The case was taken up today at 1.45 p.m., cost has been paid as directed and the memo produced. So the revision is allowed and the order of dismissing the complaint in Crl.M.P.No.17086/2013 of Judicial First Class 8 Crl. R. P.No.1752 of 2014 Magistrate Court, Vatakara, on the ground of limitation is set aside and the delay is condoned. Learned magistrate is directed to take back the complaint on file and conduct enquiry on the question of taking cognisance under Section 200 and 202 of the Code of Criminal Procedure and proceed with the complaint on merit in accordance with law. The complainant is directed to appear before the court below on 15.12.2014. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, (Judge)** **==> picture [80 x 12] intentionally omitted <==** P.A. to Judge ss