THE HON'BLE MR.JUSTICE V.BHARATHIDASAN Crl.R.C.No.721 of 2017 Govindarajan ... Petitioner //vs// Meenakshi Sundaram ... Respondent Prayer : Criminal Revision Case has been filed under sections 397 r/w 401 of Criminal Procedure Code to set aside the order dated 02.03.2017 passed by the learned Judicial Magistrate, Ambattur, Thiruvallur District in C.M.P.No.7466 of 2016 in unnumbered STC (SR) No.7704 of 2016.
For Petitioner : Mr.H.Suresh Babu For Respondent : No representation O R D E R Challenging the order dismissing the petitioner's application to condone the delay of 68 days in filing a private complaint under Section 138 of Negotiable Instruments Act, the present Criminal Revision Case has been filed.
2. The petitioner herein filed a private complaint against the respondent alleging that the respondent had borrowed a sum of Rs.1,00,000/- and in order to discharge of his liability, he has issued a cheque, and when it was presented for encashment, the same was returned as “insufficient funds”, and after completing all the legal requirements, he filed the private complaint, however, as there was a delay of 68 days in filing the complaint, he filed an application under Section 142(b) of Negotiable Instruments Act, 1881 to condone the said delay. The Court below dismissed the application. Challenging the same, the present criminal revision case has been filed by the petitioner.
3. Even though, private notice was ordered to the respondent, the respondent refused to receive the same, and the petitioner filed a memo along with returned cover. Hence, the Registry was directed to print the name of the respondent in cause list. Though the name of respondent has been printed in the cause list, today he has neither appeared in person nor through any counsel.
4. Heard Mr.H.Suresh Babu, learned counsel appearing for the petitioner and I have gone through the available materials carefully.
5. The reason stated for the delay in filing the complaint is that though the petitioner issued a legal notice to the respondent, delivery report was omitted to be handed over to the counsel in time and hence there was delay of 68 days. The Court below dismissed the application, holding that the delay was not properly explained and the cause for the delay stated by the petitioner cannot be considered to be sufficient to condone the delay.
6. It is seen from the records that after the cheque was returned, the petitioner caused statutory notice to the respondent through registered post, demanding the cheque amount, though the respondent received the same, he neither sent any reply not taken any steps to pay the amount within the stipulated time. According to the petitioner, at the time, when he engaged a counsel for filing the private complaint, by oversight, he could not handover the delivery report of the statutory notice served on the respondent in time and there has occurred delay. The court below refused to condone the delay. In this Revision, it is seen that the respondent refused to receive the notice and he neither appeared in person nor through any counsel. This court on considering the averments made in the affidavit, is of the considered view that the cause for the delay is sufficient to condone the delay so as to advance substantial justice. The Trial Court was therefore not right in refusing to condone the delay and inview of the above, the revision petition succeeds.
7. In the result, this Criminal Revision Petition is allowed and the order dated 02.03.2017 passed by the learned Judicial Magistrate, Ambattur in C.M.P.No.7466 of 2016 refusing to condone the delay of 68 days in filing the private complaint is set aside. The Court below is directed to take cognizance of the complaint, if it is otherwise in order, and proceed further according to law.
27.06.2017 Index : yes/no Internet : yes/no Speaking order/non-speaking order mst To The judicial Magistrate, Ambattur, Thiruvallur District.
V.BHARATHIDASAN,J mst
Crl.R.C.No.721 of 2017
27.06.2017