Delay by Accused in cases of Cheque Dishonour under S.138 of Negotiable Instruments Act, 1881

Delay by Accused in cases of Cheque Dishonour under S.138 of Negotiable Instruments Act, 1881 - Scope of S.482 of Code of Criminal Procedure, 1973 - Interference by High Court - Inherent Powers of High Court -  Limitation and Cheque Dishonour - Financial Capacity of Complainant - Friendly Loan - Delay in Challenging Summoning Order - Cash Loan Amount given to accused

In case of Piyush Kumar Pappu v. Mukesh Kumar Bharti [2023] GCtR 2509 (Delhi), accused has filed petition under S.482 of Code of Criminal Procedure, 1973 challenging the Order of Principal District and Sessions Judge, New Delhi District, Patiala House Courts which has primarily dismissed the revision petition filed by the petitioner-accused on two grounds. Firstly, that there was a delay of 34 days in filing the revision petition and the application for condonation of delay filed by the petitioner was bereft of any sufficient cause. The case involved allegations related to amount given in cash as loan by complainant to accused.

It was held by High Court that as far as the question of limitation is concerned, it is settled law that rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Power of condonation of delay is discretionary and is to be liberally construed. No doubt, delay is fatal to the case of any party but as far as possible the matter should be heard and decided on merits. In the instant case, there was a delay of 34 days, which should be condoned in order to decide the present case on merits.

Secondly, it was held by the learned Sessions Court that the defences raised by the petitioner-accused that the respondent had never advanced any friendly loan and he did not have any financial capacity to lend any such huge amount of loan and that advancing of friendly loan is not accounted in the business of account and income tax returns are such defences which can only be decided once the parties lead their respective evidence before the trial court.

High Court observed that in the instant case, the issuance of cheque is not denied by the petitioner and there is a presumption under Section 138 of the NI Act that the Court shall presume that the holder of a cheque received the cheque of the nature referred into Section 138 of the NI Act, for the discharge, in whole or in part or any debt or other liability. So all the defences raised by the petitioner-accused  needs evidence, therefore, there is no infirmity in the order holding that the matter requires evidence and the petitioner would be entitled to raise all the defences during the course of trial.

In this case, the MM had summoned the accused. 

The Order of Sessions Court which was set aside was to the following effect : - 

"“ First thing first, the present revision petition is barred by limitation. If the version of the petitioner is believed, he came to know about the passing of the summoning order on 27.12.2022, and was supplied with the copy of the complaint and documents on 10.02.2023 and admittedly, there is a delay of 34 days in filing the present revision petition and the application for condonation of delay supported by an affidavit of the petitioner is bereft of any sufficient cause and not explaining the inordinate delay in filing the revision petition. I am afraid the pleas raised by the Ld. Counsel for the petitioner cannot be appreciated at this stage of the case. The issues that have been raised by the petitioner could only be decided after leading of evidence. In other words, the plea by the petitioner that the complainant had never advanced any friendly loan and that he did not have the financial capacity to lend such huge amount of loan and/or that advancing of friendly loan is not accounted in the business of accounts and income tax returns, are such defences which could only be established during the course of trial. In view of the foregoing discussion, the present revision petition is dismissed without prejudice."