Kerala High Court

Abdurehiman vs Sethu Madhavan on 30 August, 2006

Equivalent citations: II (2007) BC 688, 2006 (4) KarLJ 33
Author: K Radhakrishnan
Bench: K Radhakrishnan, V Ramkumar
ORDER K.S. Radhakrishnan, J.
1.

This Revision Petition has been placed before us on a reference by Justice R.

Basant, after having noticed conflict between the decision of a learned single
Judge of this Court inMuraleedharan v. Sreeram Investment Ltd. and Ors.
and the decision of another learned Judge of this Court in G.T.C. Industrial
Ltd. v. Abdurahimankutty 1993 (1) KLT 290. The learned Judge who
decided Muraleedharan's case, supra, while dealing with an application
under Section 142 of the Negotiable Instruments Act, 1881 has taken the
view that delay in filing a complaint cannot be condoned unless it is
supported by an affidavit by the complainant explaining the reasons for the
delay.

2.

The learned Judge who decided Abdurahimankutty's case, while interpreting

the provisions ofSection 468 of the Code of Criminal Procedure, took the
view that if the delay has been property explained, cognizance can be taken,
even without an application for condonation of delay in the interests of
justice. The learned Judge while referring the matter felt that an authoritative
pronouncement is warranted with regard to the question as to whether a
detailed enquiry giving opportunity to the parties to adduce oral evidence is
necessary at the stage of taking cognizance to decide whether the delay
deserves to be condoned under Section 142 of the Negotiable Instruments
Act or whether an adhoc order is to be passed after entertaining the materials
available relegating the question to be decided after exhaustive consideration
at the final stage.

3.

The first respondent herein who is the complainant has stated that he has
given a cheque bearing number 33017 dated 27.01.2005 for an amount of

Rs. 75,000/- and the same was presented for collection through Punjab
National Bank but was dishonoured with the endorsement "funds
insufficient". Notice was sent to the accused on 28.02.2005 and the same
was received on 2.3.2005. Complainant has stated that due to ill health he
could not file the complaint within the statutory period and there was delay
of two months and 14 days in filing the complaint. Petition for condonation
of delay was preferred along with an affidavit sworn to by him but not
attested by an advocate. The reasons for the delay was explained and a
medical certificate was also produced. The court below found that there are
sufficient grounds for condoning the delay and the application was allowed.
Aggrieved by the order, this revision petition has been filed.
4.

Shri K.B. Arunkumar, the counsel appearing for the revision petitioner
submitted that the court below ought to have dismissed the application for
condonation of delay since the petition was not in the proper form and the
affidavit was not attested by the advocate. Further it was also submitted that
no sufficient cause was shown to condone the delay and the court below
ought to have dismissed the application. Sri. T.R. Muraleedharan, the
counsel appearing for the respondent-complainant on the other hand
contended that under the proviso to Section 142(b) of the Negotiable
Instruments Act the court can take cognizance of a complaint after the
prescribed period, if the complainant satisfies the court that he had sufficient
cause for not making the complaint within the prescribed period. Counsel
submitted that there is no necessity of filing an affidavit and in any view it is
not a mandatory requirement. Counsel submitted that the court can take note
of the situation whether there was sufficient ground to condone the delay in
not making the complaint within the period prescribed.

5.

We shall deal with the rival contentions urged by the parties. Section 142 of
the Negotiable Instruments Act, as amended, is extracted below for easy
reference.

142. Cognizance of offences. Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974).

(a)

no court shall take cognizance of any offence punishable under Section

138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;

(b)

such complaint is made within one month of the date on which the cause of
action arises under Clause (c) of the proviso to Section 138;
Provided that the cognizance of a 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 a complaint within such period.

(c)

no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate

of the first class shall try any offence punishable under Section 138.
(emphasis added) Section 142(a) of the Act states that no court shall take
cognizance of any offence punishable under Section 138 except on a
complaint, in writing, made by the payee or, as the case maybe, the holder in
due course of the cheque. Sub-clause (b) of Section 142 states that such
complaint has to be made within one month of the date on which the cause
of action arises under Clause (c) of the proviso to Section 138. A proviso
was added to Section 142 of the Act by the Negotiable Instruments
(Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002).
Before carrying out the amendment to Sections 138 to 142, a working group
was constituted to make recommendation as to what changes were needed to
effectively achieve the purpose of Section 138. Government taking note of
the recommendations and other relevant factors introduced the Negotiable
Instruments (Amendment) Rule, 2001 in the Lok Sabha. The Bill was
referred to the Standing Committee on Finance which submitted its report to
the Lok Sabha in November 2001. It was then decided, inter alia, to bring an
amendment to provide a discretion to the court to waive the period of one
month which has been prescribed for taking cognizance of the case under the
Act. Section 9 of Act 55 of 2002 states that cognizance of a 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 a complaint within such

period. In the statement of objects and reasons of Act 55 of 2002 it has been
stated that the existing provisions in the Negotiable Instruments Act, 1881
namely, Sections 138 to 142 in Chapter XVII have been found deficient
while dealing with dishonoured cheques. Courts are expected to dispose of
such cases as per the procedure contained in the Act though it was noticed
that the procedure to deal with such matters is cumbersome. Burden is on the
complainant to satisfy the Court that he has sufficient cause for not making
the complaint within such period. Once cause of action has arisen, limitation
will start to run and the complainant has to satisfy the court that he has
sufficient cause for not making the complaint within the period prescribed
by the statute. No procedure has, however, been prescribed under the Act
about the manner in which such complaint has to be filed. Statute does not
say that that complainant should file a separate application supported by an
affidavit stating the reasons for not making the complaint within the
stipulated period, Nevertheless, he has to satisfy the court that he had
sufficient cause for not making the application within the period prescribed.
6.

We have already indicated that the learned Judge in Muraleedharan's case,

supra, has stated that the delay can be condoned by the court only if an
affidavit is filed by the plaintiff explaining the delay. The learned Judge also
held that filing of an affidavit is mandatory. The court expressed the view
that the best way to explain the reason is to file an affidavit by the
complainant himself. We may examine the correctness or otherwise of the
reasoning of the learned Judge in Muraleedharan's case, supra, in the light of
other allied provisions under the Code of Criminal Procedure as well
as Section 5 of the Limitation Act.

7.

Section 473 of the Code of Criminal Procedure deals with extension of

period of limitation in certain cases. Section 473 is extracted below for easy
reference.

473. Extension of period of limitation in certain cases.-- Notwithstanding

anything contained in the foregoing provisions of this Chapter, any Court
may take cognizance of an offence after the expiry of the period of

limitation, if it is satisfied on the facts and in the circumstances of the case

that the delay has been property explained or that it is necessary so to do in
the interests of justice.
(emphasis added) Section 473 gives ample power to courts to take
cognizance of an offence after the expiry of the period of limitation if it is
satisfied on the facts and in the circumstances of the case that the delay has
been properly explained or that it is necessary so to do in the interests of
justice. Section 5 of the Limitation Act provides for extension of the period
prescribed in certain cases. Section 5 of the Limitation Act is also applicable
in criminal cases where the question of condonation of delay arises. Its
applicability would however be only in so far as condonation of delay is
concerned and there is no other provision of law. Section 5 of the Limitation
Act is also extracted for easy reference.
5.

Extension of prescribed period in certain cases.-- Any appeal or any

application, other than an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908, may be admitted after the
prescribed period if the appellant or the applicant satisfies the court that he
had sufficient cause for not preferring the appeal or making the application
within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any
order, practice or judgment of the High Court in ascertaining or computing
the prescribed period may be sufficient cause within the meaning of this
section.
(emphasis added) Scope of Section 5 of the Limitation Act and Section
473 as well as Section 468of the Code of Criminal Procedure, 1973 came up
for consideration before the Supreme Court inVanka Radhamanohari v.
Vanka Venkata Reddy and Ors. and the court held as follows:
In view of Section 473 a court can take cognizance of an offence not only
when it is satisfied on the facts and in the circumstances of the case that the
delay has been properly expired, but even in absence of proper explanation if

the court is satisfied that it is necessary so to do in the interests of justice.

The said Section 473 has a non obstante clause which means that said
section has an overriding-effect on Section 468, if the court is satisfied on
the facts and in the circumstances of a particular case, that either the delay
has been properly explained or that it is necessary to do so in the interests of
justice.
At times it has come to our notice that many courts are treating the
provisions of Section 468 andSection 473 of the Code as provisions parallel
to the periods of limitation provided in theLimitation Act and the
requirement of satisfying the court that there was sufficient cause for
condonation of delay under Section 5 of that Act. There is a basic difference
between Section 5 of the Limitation Act and Section 473 of the Code. For
exercise of power under Section 5 of the Limitation Act, the onus is on the
appellant or the applicant to satisfy the court that there was sufficient cause
for condonation of the delay, whereas Section 473 enjoins a duty on the
court to examine not only whether such delay has been explained but as to
whether it is the requirement of the justice to condone or ignore such delay.
As such, whenever the bar of Section 468 is applicable, the court has to
apply its mind on the question, whether it is necessary to condone such delay
in the interests of justice. While examining the question as to whether it is
necessary to condone the delay in the interest of justice, the court has to take
note of the nature of offence, the class to which the victim belongs,
including the background of the victim. If the power underSection 473 of the
Code is to be exercised in the interests of justice, then while considering the
grievance by a lady, of torture, cruelty and inhuman treatment, by the
husband and the relatives of the husband, the interest of justice requires a
deeper examination of such grievances, instead of applying the rule of
limitation and saying that with lapse of time the cause of action itself has
come to an end. The general rule of limitation is based on the Latin maxim:
vigilantibus, ei non, dormientibus, jura subveniunt (the vigilant, and not the
sleepy, are assisted by the laws). That maxim cannot be applied in
connection with offences relating to cruelty against women.

We may in this connection refer to the decision of a learned Judge of the

Calcutta High Court inAshutosh Chowdhury v. State and Anr. 1996 Crl.L.J.
2231 where the court has taken the view that independent of an application
by the prosecution under Section 473, the Court can take cognizance in
appropriate cases ignoring the bar under Section 468 of the Code and the
Magistrate can exercise the power under Section 473 of the Code
independent of an application. While dealing with Section 473 of the Code,
a Division Bench of the Andhra Pradesh High Court in K. Hanumantha Rao
v. Narasimha Rao and Ors. 1982 Crl.L.J. 1734 has also taken the view that
the delay can be explained to the satisfaction of the court without a formal
application. The Gujarat High Court in Sureshbhai K. Desai v. State of
Gujarat 1983 Crl. LJ. 1684 also took the view that while invoking Section
473 of the Code it is not necessary to give an application containing the
grounds in advance so that the accused should prepare his defence but there
should be facts and circumstances on which the court should be satisfied to
condone the delay before exercising the jurisdiction under Section 473. A
learned single Judge of this Court inVijayan v. State of Kerala while
interpreting Section 142 and 138 of the Negotiable Instruments Act however
took the view that it would not be proper to deny opportunity to accused to
defend the case on the ground of delay which would be available to him.
8.

We are of the view that while entertaining an application for condonation of

delay underSection 142 there is no requirement that the complainant should
file an affidavit in support of the petition for condonation of delay; nor is he
obliged to file an application. Sufficient cause however be shown in the
complaint itself or in the application for condonation of delay or in the
affidavit, if any, or in other materials which would be sufficient to satisfy the
court that the complainant had sufficient cause for not filing the complaint
within the specified period. Procedural provision as held by the apex court
in Uday Shankar Triyar v. Ram Kalewar Prasad Singh should not be allowed
to defeat substantive rights or to cause injustice. The court held as follows:

Non-compliance with any procedural requirement elating to a pleading,

memorandum of appeal or application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant statute or rule so
mandates. Procedural defects and irregularities which are curable should not
be allowed to defeat substantive rights or to cause injustice. Procedure, a
handmaiden to justice, should never be made a tool to deny justice or
perpetuate injustice, by any oppressive or punitive use. The well recognized
exceptions to this principle are:
i)

where the Statute prescribing the procedure, also prescribes specifically the
consequence of non-compliance.

ii)

where the procedural defect is not rectified, even after it is pointed out and
due opportunity is given for rectifying it;

iii)

where the non-compliance or violation is proved to be deliberate or

mischievous;

iv)

in case of Memorandum of Appeal, there is complete absence of authority

and the appeal is presented without the knowledge, consent and authority of
the appellant.

9.

Court has been conferred with the discretion to waive the period of one
month prescribed for taking cognizance. When a court is invested with
discretionary power it has to make a choice between alternative courses of
action and act according to the rules of reason and justice. But as opined by
the learned Judge in Vijayan's case, supra if there is delay in filing a
complaint before reaching satisfaction by the court the court should give
notice to the respondent and after hearing the respondent the court should
satisfy itself as to whether the complainant had sufficient cause for not
making the complaint within the specified period. In our view, a detailed
enquiry giving opportunity to the parties to adduce oral evidence is not
necessary at the stage of taking cognizance to decide whether delay deserves
to be condoned under Section 142 of the Act. Court can exercise its
discretion at its initial stage and decide whether the delay has to be

condoned or not. However, in the light of the ratio in State of Maharashtra v.

Sharadchandra Vinayak Dongrethe court will have to give an opportunity of
being heard to the accused before condoning the delay. In the above
mentioned circumstances, we find it unable to accept the reasoning given in
Muraleedharan's case. The direction given by the learned Judge in
Muraleedharan's case that delay can be condoned only on the strength of an
affidavit filed by the complainant himself cannot be sustained.
10.

We therefore overrule the decision in Muraleedharan's case and hold that in

the absence of any specified procedure laid down under the Act the
complainant need only satisfy the court that he had sufficient cause for not
making the complaint within the prescribed period and the court can take
note of all the aspects of the matter for reaching the satisfaction that the
complainant had sufficient cause for not making the complaint within the
period prescribed. In appropriate cases, it is always open to the court to insist
on filing of an affidavit depending upon the facts and circumstances of each
case. We are satisfied on facts that the trial court has rightly held that there
are sufficient grounds to condone the delay of two months and 14 days in
making the complaint. Revision petition therefore lacks merits and the same
is dismissed. Reference is answered accordingly.