1 2025:CGHC:16051 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1203 of 2025 1 - Balmukund Agrawal S/o Late Shri Mulchand Agrawal Aged About 61 Years R/o Village Ward No. 04, Tirapara, Balod, District Balod, Chhattisgarh ... Petitioner(s) versus 1 - Bhakti Ratandas (Bhakti A. Ratandas) S/o Shri Rasbihari Das Aged About 58 Years R/o Bakhrupara, Narayanpur, Revenue District Narayanpur, Civil District Kondagaon, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Siddarth Pandey, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 04/04/2025 1. The present Criminal Miscellaneous Petition is filed by the petitioner against the impugned order dated 08-01-2025 passed by learned Additional Sessions Judge, Kondagaon, in Criminal Revision No. 14/2024, whereby the criminal revision filed by the petitioner is partly allowed and the matter is remitted back to the learned trial court to pass the order afresh with respect to registration of the complaint case after giving opportunity to the respondent/complainant to file an application for condonation of delay in filing 2 complaint and to decide the same in accordance with law after providing opportunity of hearing to the parties. 2. Brief facts of the case are that the petitioner is an accused in the complaint case No. 47/2023, pending before the learned Chief Judicial Magistrate, Narayanpur, District Kondagaon, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short “NI Act”). The respondent/complainant has filed a complaint case on 25-02-2023 before the learned trial court under Section 138 of the NI Act, alleging that the complainant and the accused were contractors and they worked together for the construction of a pre-matric girls hostel at Narayanpur. After completion of work, there was an outstanding amount in favour of the complainant of Rs. 69,98,000/- and in lieu thereof, the accused had issued a cheque No. 975807 dated 05-12-2022, which was of the State Bank of India, Narayanpur branch. When the cheque was deposited by the complainant in his bank account for its clearance, the same was dishonoured by the payee bank on the ground of “payment stopped by drawer”. After the due process of the demand notice, the complaint was filed on 25-02-2023 before the learned trial court. 3. The complaint case filed by the complainant is registered by the learned trial court vide order dated 25-02-2023, cognizance was taken, and process was issued against the petitioner/accused. 4. On 22-08-2024, the petitioner/accused had orally challenged the order of registration of the complaint dated 25-02-2023 and raised an objection that the complaint of the complainant is time-barred. After hearing the parties, the learned trial court rejected the objection of the petitioner/accused on 22-08- 2024 itself by holding that the complaint case has already been registered and cognizance has been taken, and the order cannot be reviewed. 5. The petitioner/accused had challenged the order dated 22-08-2024 passed by the learned trial court by filing the Criminal Revision No. 14/2024 before the learned Additional Sessions Judge, Kondagaon. The Criminal Revision 3 filed by the petitioner has been partly allowed by the revisional court on 08- 01-2025, and remitted the matter back to the learned trial court for providing an opportunity to file an application for condonation of delay and directed to decide the same in accordance with law after giving the opportunity of hearing to the parties, which is under challenge in the present petition filed by the petitioner/accused. 6. Learned counsel for the petitioner would submit that the complaint filed by the respondent/complainant is time-barred as provided under Section 142(1) (b) of the NI Act, and without there being any application, the delay cannot be condoned. The court cannot direct the party to file an application for condonation of delay. The date on which the complaint is filed, there is no application for condonation of delay and therefore, the complaint ought to have been rejected, instead of remitting the matter back for fresh adjudication. When the learned revisional court satisfied that the complaint is time-barred and there is no application for condonation of delay, they ought to have rejected the complaint and set aside the order of registration of the complaint and taking cognizance. He would further submit that the subsequent filing of the application for condonation of delay is not maintainable, and the defect is not curable. The application for condonation of delay should be filed along with the complaint. He would rely upon the order passed by Madhya Pradesh High Court (Indore Bench) reported in 2015 (4) MPLJ 230, “Keshav Chouhan v. Kiransingh s/o Narayan Singh Goutam”, and order passed by Patna High Court in Criminal Miscellaneous No. 85714 of 2019, order dated 01-09-2022 “Amjad Ali Khan @ Guddu Khan v. The State of Bihar and Another” and submit that the cognizance taken by the learned trial court is erroneous and the same is liable to be set-aside. 7. I have heard learned counsel for the petitioner and perused the documents annexed with the petition and the aforesaid judgments cited by him. 4 8. In the present case, as reflected from the impugned order that on 13-12- 2022, the intimation about dishonour of the cheque was received by the complainant, and he served a legal demand notice to the petitioner/accused on 28-12-2022. The said legal demand notice was served upon the petitioner accused on 31-12-2022, and he has to pay the amount of the cheque within 15 days from the date of receipt of the notice, i.e. up to 15-01-2023. If the petitioner/accused failed to pay the amount of the cheque up to 15-01-2023, the complainant may file his complaint within 01 month from the 16th day of service of notice, i.e. when the cause of action accrues in favour of the complainant. The complainant has filed his complaint on 25-02-2023, which is apparently barred by 10 days. But, there is no application for condonation of delay in filing the complaint as provided under Section 142(1)(b) of the NI Act. The learned Chief Judicial Magistrate has registered the complaint on 25-02-2023 itself, and process was issued. The order dated 25-02-2023 is not challenged by the petitioner/accused in any proceeding, but orally raised an objection regarding the time-barred complaint and prayed for dismissal of the same on the ground of limitation. The learned Chief Judicial Magistrate has rejected the oral objection of the petitioner/accused vide order dated 22- 08-2024 by holding that the trial court has already taken cognizance and issued process, and the trial court cannot review its own order taking cognizance of the offence. The petitioner has not challenged the order of registration of the complaint and/or order taking cognizance of the offence, but has challenged the order dated 22-08-2024 whereby the oral objection has been rejected. The learned revisional court has also considered that the learned Chief Judicial Magistrate has rightly held that the trial court cannot review its own order. The learned revisional court further considered the judgment passed by Hon’ble Supreme Court in “Pawan Kumar Ralli v. Maninder Singh Narula”, 2014 (15) SCC 245, in which it is held that the complainant can be provided opportunity to file application for condonation of 5 delay to do complete justice in the case, and thereby remitted back the matter to the learned trial court to provide opportunity to the complainant to file the application for condonation of delay and to decide the case afresh after giving proper opportunity of hearing to the parties. 9. The question raised for its consideration of this court is whether the appellate court is jurisdiction to remit back the case for providing opportunity to file the application for condonation of delay in filing complaint under Section 138 of the NI Act or not and in absence of any application for the same, the complaint is liable to be dismissed. There is no quarrel with regard to the proposition of law that in case the complaint is barred by limitation, the same should be accompanied with an application under Section 142 (1)(b) of the NI Act, for condonation of delay. A perusal of the said provision of the NI Act makes it clear that the complaint is time-barred; it must be accompanied by the application for seeking condonation of delay, and the duty is cast upon the court to first decide the issue of condonation of delay before taking cognizance of the case. 10.The ground urged by the petitioner in the instant petition is that the appellate court cannot direct the learned trial court to ask for the filing of the application for condonation of delay, and should decide the same. It is also urged that in the absence of any application for condonation of delay, the complaint should be treated as barred by limitation and should have been dismissed the same, instead of remitting it back to the learned trial court. 11. It goes without saying that the limitation is the substantive law, and the complaint ought to be filed within the time limit. Filing of the complaint within the period of limitation is a rule, and condonation of delay is an exception. Ordinarily, if a complaint is not drawn in the manner prescribed under Section 142 of the NI Act, it may be rejected or returned to the party for the purpose of being amended or to cure the defects within time. The proviso to Section 142 (1)(b) of the NI Act provides that the court “may” take cognizance of a 6 complaint after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. The word “may” in the context needs to be interpreted as a discretion on the court. Such defect can be cured by the party concerned and present the complaint without further delay. 12.In the case of “State of M.P. and Anr. v. Pradeep Kumar and Anr.”, 2000(7) SCC 372, the Hon’ble Supreme Court has considered that the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. Thus, even the Hon’ble Supreme Court is of the view that even an unintentional lapse from a litigant should not usually cause the doors of judicature to be permanently closed before him. While dealing with the case under the Civil Procedure Code, 1908, the Hon’ble Supreme Court has held in the case of Pradeep Kumar (supra) that:- “19 - The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the 9 required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code.” 13.In the case of Pawan Kumar Ralli (supra), the Hon’ble Supreme Court has held that:- “19- However, when the issue of limitation had come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The 7 said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the court to take cognizance of offence even after expiry of the period of limitation (see MSR Leathers v. S. Palaniappan). Only with a view to obviate the difficulties on the part of the complainant. Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the court to condone the delay (see Subodh S. Salaskar v. Jayprakash M. Shalt). 20. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24-5-2012 but not mentioned about the handwritten note dated 27-4-2012. Basing on the said averment, the learned trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and the Court exercising the discretion to condone the delay did not arise at all. 21. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the special leave petition that he should have been allowed to move an application for condonation of delay before the trial court as the respondent has not suffered any prejudice by reason of 25 days' delay, we strongly feel f that the appellant should not have been deprived of the remedy provided by the legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. 22. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers and Subodh S. Salaskar and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the trial court for 8 deciding the issue of limitation. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, the complainant can be given opportunity at any stage of the proceeding. As already discussed by us in the foregoing paragraphs, we have come to the irresistible conclusions, to afford an opportunity for the complainant to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case.” \ 14.Thus, it can safely be concluded in the light of the law laid down by the Hon’ble Supreme Court that even a deficiency of not accompanying the application for condonation of delay is curable defect and if required, such application can be filed subsequently and the complaint can be treated as presented in accordance with the requirement contained in Section 142 (1)(b) of the NI Act. 15.The consideration and the facts and circumstances of the judgment cited by the learned counsel for the petitioner is distinguishable from the facts and consideration of the present case. in Keshav Chouhan’s case (supra) the consideration was conviction of the accused in a time barred complaint whereas in Amjad Ali Khan @ Guddu Khan case (supra) the consideration was the challenge of cognizance order passed by the learned trial court. In the present case, the order taking cognizance has not been challenged, but the rejection order of the oral objection is challenged by the petitioner/accused. Therefore, no benefit can be extended to the petitioner from the judgment cited by learned counsel for the petitioner. 16.In the present case, the learned revisional court, in view of the judgment passed by the Hon’ble Supreme Court in Pawan Kumar Palli case (supra), has remitted the matter back to the learned trial court for granting opportunity to file the application for condonation of delay in filing the complaint and then to decide it in accordance with law, in which, there is no illegality or infirmity is found by this court warranting interference with the impugned order. 9 17.Accordingly, the present petition lacks merit, is liable to be and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.06.04 12:09:28 +0530