2010 ALL MR (Cri) JOURNAL 143
(ORISSA HIGH COURT)
S.K. MISHRA, J.
Orissa Rural Housing & Development Corporation Ltd. (Orhdc)Vs.Raj Kishore Joshi
Cri. Revn. Nos.977 of 2006,Cri. Revn. Nos.978 of 2006
4th December, 2009
Petitioner Counsel: M/s. A. K. HOTA and S. K. GARIA
Respondent Counsel: M/s. A. K. MOHAPATRA, N. C. ROUT, S. K. PADHI, J. K. BEHERA , A. K. MOHAPATRA
Negotiable Instruments Act (1881) Ss.138, 142(b) - Delay on filing complainants - Delay of 14 and 22 days in filing complaints by State owned Corporation - Vigilance enquiry was going on in which very high officers were under scrutiny - Taking into consideration this fact and red-tapism in such Corporations, delay condoned. (Para 9)
Collector, Land Acquisition, Anantanag Vs. Mst. Katiji, (1987)2 SCC 107 [Para PARA6,7]
State of Nagaland Vs. Lipok Ao, 2005 ALL MR (Cri) 1570 (S.C.)=(2005)3 SCC 752 [Para 7]
Govinda Chandra Sahu Vs. State of Orissa, 2006 (Suppl) II OLR 724 [Para PARA7]
Collector, Zone Officer, Upper Indravati Project Vs. Harapriya Mishra, 2007 CLR 8 [Para PARA7]
Managing Director, Woodburn Developers & Builders Pvt. Ltd. Vs. Smt. Debamaya Panigrahi, 2007 (Suppl) 1 OLR 792 [Para PARA7]
2. In these Criminal Revisions, petitioners assail the orders passed by the learned S. D. J. M., Bhubaneswar on 25-8-2006 in I. C. C. No.901 of 2006 and in I. C. C. No.902 of 2006, whereby he rejected the petitions filed by the complainant to condone the delay in filing the complaint case under Section 5 of the Limitation Act, hereinafter referred to as "the Limitation Act", read with Section 142(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
3. Brief fact of the case of the complainant-petitioner is that Orissa Rural Housing and Development Corporation Ltd. had advanced the house-building loan to the accused-opposite party. There was an outstanding dues against the accused, for which he issued two account payee cheques of Rs.9,40,000/- each, on 28-10-2005 in favour of the complainant-Company drawn on Bank of Baroda, Bhubaneswar. The said cheque was presented before the Syndicate Bank, ORHDC Extension Counter, Bhubaneswar for collection, but the complainant was intimated that the cheque has been dishonoured due to 'stop payment' and insufficiency of funds. Thereafter, the complainant on 4/5-1-2006 sent two demand notices to the accused in his address. The notices were received by the accused on 21-1-2006 and 14-1-2006 respectively, but the accused did not pay the amount due within 15 days of the receipt of the notice. Thereafter, the complainant initiated a complaint case on 23-3-2006.
The complainant filed applications under Section 142(b) of the Act read with Section 5 of the Limitation Act. In such petitions, the complainants averred that due to official process and as an investigation was made by the Vigilance Department in the Orissa Rural Housing Development Corporation Ltd. there has been delay of 7 and 18 days respectively in filing these present complaints. The complainant further averred that the delay was not intentional. Hence, the delay be condoned, otherwise it will cause irreparable loss to the financial institution. The petitions were annexed with affidavits of the Assistant Accounts Officer of the Corporation.
4. Learned S . D. J. M., Bhubaneswar, in the impugned orders held that no documents have been filed to believe the plea taken by the complainant. Hence, he rejected the petition for condonation of delay. Such order of refusing to condone the delay has been challenged in this Revision Application. In the Revision Applications, the Corporation has filed two letters dated 25-10-2005 and 27-10-2005 indicating that Vigilance enquiry was going on regarding sanction of Rs.51,35,000/- in favour of M/s. Duro Wires Pvt. Ltd.
5. In course of hearing of the application, learned counsel for the petitioner submits that a pragmatic approach should be adopted to condone the delay, whereas learned counsel for the opposite party very emphatically submitted that absolutely no ground has been made out for condoning the delay in this case. Hence, he submitted that the Revision application should be dismissed.
6. Section 138 of the Act provides for penalty for dishonour of cheque for insufficiency, etc. of funds in the account of the drawer. In clause (a) to the proviso to the section, it is provided that nothing contained in that section shall apply unless the cheque has been presented to the Bank within a period of six months from the date, on which it was drawn or within the period of its validity, whichever is earlier. In clause (b) of the said proviso, it is further provided that Section 138 of the Act shall not be attracted unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within 30 days of receipt of information by him from the Bank regarding the return of the cheque as unpaid. Clause (c) provides that such penal provision shall not be attracted unless, the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Section 142 of the Act provides that no Court shall take cognizance of an 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, and that 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. It is further provided that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he has sufficient cause for not making a complaint within such period. Admittedly, the cheque was dishonoured and intimated to the complainant on 24-12-2005. On 4/5-1-2006, the complainant sent demand notices as envisaged under Section 138(b) of the Act. One such notice was served on the accused on 14-1-2006, for which 1 C. C. No.902 of 2006 has been initiated. So the accused had the opportunity of making payment of the same within the next 15 days i.e. by 29-1-2006. For computing the period of 15 days, the day on which the notice was served on the accused has to be excluded. Therefore, in this case the cause of action as envisaged under Section 138(c) arises on 30-1-2006. Thus, in this case the complaint should have been filed on or before 2nd March, 2006. But the complaint has been filed on 23-3-2006, which indicates that there is delay of 21 days. In I. C. C. No.901 of 2006, notice was received by the accused on 21-1-2006. He was required to make the payment by 5-2-2006. Again he failed to do so. The complaint case should have been initiated on 8-3-2006. As the complaint case has been initiated or filed by 23-3-2006, there is delay of 14 days. The question that now arises, whether the complainant has shown sufficient cause for condoning such delay in filing the complaint. Section 5 of the Limitation Act, 1963, which is pari materia with the proviso to Section 142 of the Act, provides that any appeal or application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he has sufficient cause for not making the appeal or making the application within such period. This provision came up for consideration of the Hon'ble Apex Court in the case. Collector, Land Acquisition, Anantanag and another Vs. Mst. Katiji and others, (1987)2 SCC 107. The Apex Court has held that it is common knowledge that the Apex Court has been making a justifiably liberal approach in such matter instituted before it, but the message does not appear to have percolated down to all the other courts in the hierarchy. The Apex Court further observed that such a liberal approach is adopted on principle as it is realized that ordinarily a litigant does not stand to benefit by lodging an appeal late. Rather, he runs a serious risk. It is further held that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated, as against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. The apex Court also ruled that a pedantic approach should not be adopted and the doctrine "Every day's delay must be explained" must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. Further, the Apex Court held that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In the said case, the Hon'ble Supreme Court has further observed that the doctrine or equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner and there is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. The Apex Court further noted that in fact experience shows that on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing. and passing-on-the-buck ethos, delay on its pan is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Court, therefore has to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause".
7. In State of Nagaland Vs. Lipok Ao and others, (2005)3 SCC 752 : [2005 ALL MR (Cri) 1570 (S.C.)], the apex Court has held that proof of sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In that case, the Apex Court has quoted a number of decisions of that Court and approved the views expressed in the case of Collector, Anantanag (supra). The apex Court condoned a delay of 57 days in that case.
Learned counsel for the opposite party has relied upon several cases like Govinda Chandra Sahu Vs. State of Orissa and others, 2006 (Suppl) II OLR 724; Collector, Zone Officer, Upper Indravati Project Vs. Harapriya Mishra and others, 2007 CLR 8; Managing Director, Woodburn Developers & Builders Pvt. Ltd. Vs. Smt. Debamaya Panigrahi, 2007 (Suppl) 1 OLR 792, wherein it has been held that delay cannot be condoned unless sufficient cause is shown.
8. Section 138 of the Negotiable Instruments Act, 1881 has been enacted to prevent misuse of the banking institutions and to promote business transactions through negotiable instruments. By providing punishment under Section 138 of the Act, the Parliament has provided punishment for those persons who follow unscrupulous method of issuing cheques without intending to honour the same. Originally, that is, before the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 came into force, there was no provision for condoning the delay in filing the complaint petition. However, keeping in view the complex nature of modern business practice, in which many a times, businessman, traders etc. have to depend upon and have faith on others and for that reason and for other reasons, there may be delay in preferring the complaint. Therefore, the Parliament in its wisdom, perhaps, thought to provide a saving clause in shape of the to proviso to Section 142 of the Act, whereby the Court was given the discretion to take cognizance of the offence even after lapse of thirty days of the cause of action, as mentioned in Clause (c) of the proviso to Section 138, if it is satisfied that the complainant had sufficient cause by not making a complaint within a period prescribed. In principle, the ratio laid down by the Apex Court with respect to Section 5 of the Limitation Act also applies to the proviso to Section 142 of the Act as in both the provisions, the expression "sufficient cause" appears. Like section 5, the proviso to clause (b) of Section 142 of the Act is a benevolent provision and it has to be construed liberally and as per the principle enunciated above.
9. Coming to the case in hand, it is undisputed at the stage that the transaction on which the present opposite party representing M/s. Duro Wires Pvt. Ltd. is involved is under investigation by the Vigilance Department. It is also undisputed that the very high officers of the Corporation are under scrutiny of the vigilance Department and some of them have been arrested. It is well known that such Government Corporations are also manned by public servants on deputation and otherwise. The principle applicable to the State is also applicable to such State owned Corporations. Such Corporations also are categorized by impersonal machinery and inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand. Such red-tapism and vigilance enquiry resulting in delay is very easy to understand. Thus, taking of pragmatic approach, this Court comes to the conclusion that the learned trial Court committed gross illegality by not considering the matter of condonation of delay in its proper perspective and therefore, has caused a miscarriage of justice.
10. In the result, the revisions succeeds an the orders dated 25-8-2006 in ICC Nos.901 and 902 of 2006 are hereby set aside, the delay in filing the complaint is condoned and learned S. D. J. M., Bhubaneswar is directed to take up the cases on merit. The petitioner is directed to appear before the learned magistrate on 6-1-2009.