CASE TITLE:
M/S A. SEATING &ORS VS M/S. NANDINI MODULARS
DATE OF ORDER:
8th April, 2022
JUDGE(S):
Hon’ble Justice H.P. Sandesh
PARTIES:
PETITIONERS-M/S A. SEATING (A PARTNERSHIP FIRM)
GANESH KUMAR G
BALAKRISHNAN SUBHRAMANI
RESPONDENT: M/S NANDANI MODULARS
SUBJECT
The Court (appellate) has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated.
IMPORTANT PROVISIONS
- Section 138 of NIA
- Section 142(b) of NIA
- Section 397(1) of Cr.P.C.
Brief Facts
- The Complainant was running an industry in the name of M/s Nandini Modulars. The accused gave and undertaking to the Complainant that he will discharge Rs 13,58,921/- within 15 days and also issued four cheques in favour of the Complainant as the security which on presentation got dishonoured. The trial court after considering both oral and documentary evidences convicted the petitioners.
- The accused argued on appeal that the complaint was precluded by limitation, that no application had been submitted with the Trial Court, and that the petitioners' case had been started incorrectly.
- The appellate court remanded the case to the Trial Court to consider it anew, giving the complainant the opportunity to file the necessary application for delay condonation, and directed the Trial Court to decide the application first and then proceed with the matter as per law, relying on the Apex Court's decision in the case of Pawan Kumar Ralli, and thus set aside the Trial Court's judgement.
ARGUMENTS ADVANCED BY THE PETITIONERS
- It was argued by the counsel that there was a seven-day delay in filing the complaint ang ground of delay observed by the Appellate Court was wrong and was not mentioned in the trial court.
- It was further stated that the Appellate Court does not have the power under Cr.P.C to remand the case back to Trial Court and allow the Complainant to file a condonation of delay application.
- The delay application should have been filed back then and not after the opportunity arises.
ARGUMENTS ADVANCED BY THE RESPONDENTS
- The counsel argued that since the petitioner is objecting the delay for the first time, the Appellate Court considering the application must come to the conclusion that deciding such application comes under the exclusive domain of the Magistrate to condone the delay and not the Appellate Court and therefore the said Appellate Court cannot usurp the jurisdiction of Trial Court.
ANALYSIS OF THE COURT
- If delay is noticed, the Trial Court can even call upon the Complainant to file an application for condonation of delay. The Court also relied upon Section 142(b) of the act.
- The Court observed "When the issue of limitation is raised before the Appellate Court, the complainant immediately files an application before the Appellate Court for condonation of delay, and the Appellate Court comes to the conclusion that the delay cannot be considered in the Appellate Court usurping the powers of the Trial Court, and the same must be dealt with by the Trial Court."
CONCLUSION
The Petition was dismissed and the Court directed the trial court to dispose of the case in one year. Further the court said,"If such defence was taken before the Trial Court as directed by this Court in the case of G. Thimmappa (supra), ought to have filed for condonation of delay. It is further observed that if delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay. No circumstances was arisen before the Trial Court."
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