The aforesaid observations and the law laid down by the Apex Court show that condonation of delay is within the discretion of the Court and the Court is expected to keep in mind the aforesaid things. If the J.M.F.C. forms opinion that the envelops contain nothing and no statutory notices were sent by the complainant to the accused, this circumstance can be considered by the J.M.F.C. at the time of deciding the delay condonation applications. It cannot be said that consideration of such circumstance amounts to touching of the merits of the complaints for final disposal. If this circumstance is considered, the Court will form opinion as to whether there is some arguable case in the complaint itself for proceeding ahead like issuing process in the matter. If the J.M.F.C. has formed the opinion that such exercise is required in the present matter, there is nothing wrong in it. No particular procedure is prescribed for deciding the delay condonation application and it is up to the Magistrate to follow the procedure required in view of peculiar circumstance. This Court holds that there is nothing wrong in the order made by the J.M.F.C. No interference is warranted in the orders made by the learned J.M.F.C.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Application No. 5808 of 2016, Appln. 5809, 5810 and 5811/2016
Decided On: 20.07.2018
Nandlal Gangaram Ranglani Vs. Mahak Amit Ranglani and Ors.
Hon'ble Judges/Coram:
T.V. Nalawade, J.
Citation: 2019(1) MHLJ 804
1. The first proceeding is filed to challenge the order made on Exh. 13 in Criminal Misc. Application No. 709/2014, which is pending in the Court of Judicial Magistrate, First Class, Jalgaon. The second proceeding is filed to challenge the order made on Exh. 13 in Criminal Misc. Application No. 712/2014, which is pending in the same Court. The third proceeding is filed to challenge the order made on Exh. 13 in Criminal Misc. Application No. 710/2014, which is pending in the same Court. The last proceeding is filed to challenge the order made on Exh. 13 in Criminal Misc. Application No. 711/2014, which is also pending in the same Court.
2. The main applications are filed for condonation of delay caused in filing complaints for offence punishable under section 138 of Negotiable Instruments Act. In delay condonation applications, the accused have produced envelops in which purportedly statutory notices under the provisions of Negotiable Instruments Act were sent by the complainant to the accused persons. Those envelops are taken in custody by the Court as it is the contention of the accused that those envelops did not contain anything and so, no statutory notices were given by the complainant before filing of the proceedings. When the delay condonation applications came for hearing, aforesaid applications were moved before the Court to open the envelops to ascertain as to whether the statutory notices were present in the envelop. Say of the present respondent, original complainant was sought and the learned Magistrate has made order to open the envelops as Magistrate wants to see the contents of the envelops for deciding the delay condonation applications.
3. The learned counsel for applicants of the present proceedings, original complainant submitted that at present only the delay condonation applications are to be decided and for that there is no need to see the contents of the envelops. He submitted that considering the contention that there was no statutory notice in the envelop, will amount to touching the merits of the matter and that is not permissible at the time of taking cognizance of the matter.
4. It is true that at initial stage only prima facie case is required to be made out by the complainant. However, in a case filed under section 138 of Negotiable Instruments Act, there are some statutory requirements which need to be complied with for taking cognizance of the matter. If there is no contention in the complaint that statutory notice was sent to accused, the Court can refuse to take cognizance of the matter. The present contention is similar contention as the applicants of delay condonation applications, accused want to show that statutory notices were actually not sent in the envelops. Those envelops were not opened by the accused and they are produced in the Court, according to the accused, in the same condition in which they were delivered to them.
5. For getting the relief of condonation of delay, the applicant is expected to show that there was 'sufficient case' for not filing the proceeding within the period of limitation. This Court had occasion to consider the requirements which need to be satisfied for condonation of delay in a proceeding bearing Second Appeal No. 198/2013 decided at this Bench on 14.3.2014 [Chandrakant s/o. Laxman Kulbhaiyya and Anr. Vs. The State of Maharashtra and Ors.]. This Court has made observations for that purpose at para No. 11 to 16 and the observations are as under:-
"11) Section 5 of the Limitation Act runs as under:-
"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 prescribe 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 ascertain or computing the prescribed period may be sufficient cause within the meaning of this section."
12) In Section 5 at two places the word "may" is used. This shows that the Curt has discretionary power in this regard. Section 5 further shows that the party seeking extension of prescribed period is required to satisfy the Court that he had sufficient cause for not preferring the appeal/application and that arose within such period and continued thereafter. Thus, existence of sufficient cause is a condition for use of discretion by the Court.
13) In the case reported as MANU/SC/0042/1961 : AIR 1962 SC 361 (V 49 C 56) (Ramlal v. Rewa Coalfields Ltd.), the Apex Court has laid down that in construing this section two important considerations should be followed viz (a) that the expiration of the period of limitation prescribed for an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between parties and this right, which has accrued to the decree holder by lapse of time should not be lightly disturbed; and, (b) that if sufficient cause for causing delay is shown, discretion is given to the Court to condone the delay and admit the appeal. This discretion has been conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
14) The provision of section 5 and the observations made by the Apex Court show that there are two considerations in section 5 of the Limitation Act. The provision needs to be considered from both the angles mentioned by the Apex Court. So far as the construction of expression "sufficient cause" is concerned, the law is well settled. Section 5 does not require a "good cause" but requires "sufficient cause" which is something more than good cause. The expression "sufficient cause" is not defined but it is laid down by various Courts that it must mean a cause which is beyond the control of the party invoking the section. Any cause which prevents the parties approaching the Court within time is sufficient. Here only it needs to be observed that the cause must have arisen within prescribed time and the cause must have continued beyond that. In ascertaining cause, the test of reasonable man in normal circumstance needs to be applied. The burden in this regard rests on the party seeking condonation of delay. He needs to discharge it by adducing evidence.
15) The Apex Court has laid down that the purpose of provision is to advance substantial justice and so the Court using discretion must prima facie ascertain whether denying of relief would amount to frustrating meritorious case and denying substantial justice. As care needs to be taken in this regard, it can be said that the expression "sufficient cause" is widely elastic. In one case, a ground may not be acceptable as sufficient ground for condonation of delay but the same ground in other case, in view of facts and circumstances of that case, may be a valid ground for condonation of delay. In one case if Court finds that the party seeking condonation has arguable case, there is prima facie merit in the matter, the Court may hold on the basis of explanation given by the party that sufficient cause is shown. In other case even when the ground is the same, if Court finds that condoning the delay would unnecessarily cause harassment to the other side, it will be defeating the interests of justice, the party applying for condonation has is no arguable case, the Court may refuse to condone the delay.
16) The provision of section 5 of the Act has given discretionary power to the Court and the party applying for condonation has no right as such. In a case the party applying for condonation of delay may be in a position to show "sufficient cause" and there may be a ground in that regard which cannot be disputed. However, in such a case also the Court has to exercise discretion judiciously and the exercise must be to advance substantial justice. The Court is expected to give reasons for refusing to condone the delay or for giving relief of condonation of delay. This needs to be done in systematic manner as observed above. The reasons must be on the grounds mentioned to make out sufficient cause and there must also be reasons on the point of prima facie merits of the case and bona fides. In the case like present one, when there was no cause of action for the suit and the matter was already decided finally, the Court is not expected to use discretion in favour of the party applying for condonation of delay. In such a case the delay does not deserve to be condoned. The District Court has not touched the rival contentions to ascertain prima facie merits of the case. However, the District Court has not committed error in dismissing the application filed by the present appellants."
6. The aforesaid observations and the law laid down by the Apex Court show that condonation of delay is within the discretion of the Court and the Court is expected to keep in mind the aforesaid things. If the J.M.F.C. forms opinion that the envelops contain nothing and no statutory notices were sent by the complainant to the accused, this circumstance can be considered by the J.M.F.C. at the time of deciding the delay condonation applications. It cannot be said that consideration of such circumstance amounts to touching of the merits of the complaints for final disposal. If this circumstance is considered, the Court will form opinion as to whether there is some arguable case in the complaint itself for proceeding ahead like issuing process in the matter. If the J.M.F.C. has formed the opinion that such exercise is required in the present matter, there is nothing wrong in it. No particular procedure is prescribed for deciding the delay condonation application and it is up to the Magistrate to follow the procedure required in view of peculiar circumstance. This Court holds that there is nothing wrong in the order made by the J.M.F.C. No interference is warranted in the orders made by the learned J.M.F.C. In the result, all the proceedings are dismissed. The learned J.M.F.C. is expected to decide the delay condonation applications within four months from the date of receipt of this order.
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