CRLRC/2609/2012 of M/s Sri Balaji Pipe Industries, Vs The State of Andhra Pradesh, on 28 December 2012

ORDER:

This Criminal Revision Case is directed against the order, dated12.09.2012, passed in Criminal Revision Petition No.132 of 2012 onthe file of I Additional Metropolitan Sessions Judge, Hyderabad,whereby and whereunder the learned Additional MetropolitanSessions Judge set aside the order, dated 16.03.2012, passed inCrl.M.P.No.3061 of 2011 on the file of XVII Additional ChiefMetropolitan Magistrate, Hyderabad, and condoned the delay of 70days in filing the complaint under Sections 138, 141 and 142 of the Negotiable Instruments Act.

2. Facts in brief are: The 1[st] petitioner is a partnership firm and thepetitioners 2 and 3 are its partners. The 2[nd] respondent is thecomplaint. He presented a complaint in the Court of the XVIIAdditional Chief Metropolitan Magistrate, Hyderabad, alleging, interalia, that the petitioners issued a cheque bearing No.070093, dated09.04.2011, drawn on State Bank of Hyderabad, Bagh LingampallyBranch, for Rs.1.00 Crore towards partial discharge of legallyenforceable debt. On presentation, the said cheque came to bedishonoured on the ground ‘payment stopped by the drawer’ on16.06.2011. He issued a legal notice to the petitioners on 25.06.2011through registered post with acknowledgement due calling upon themto pay the amount covered under the cheque in question. There beingno response, complaint came to be filed for the offence punishableunder Section 138 of the Negotiable Instruments Act. Since there wasdelay of 70 days in filing the complaint, an application under Section142(B) of the Act came to be moved by the complainant. It is stated inthe petition that after receipt of legal notice, the accused approachedhim for amicable settlement of all the disputes and therefore, he did notfile the complaint in good faith and as the settlement between theparties failed, he filed the complaint and thereby delay of 70 daysoccurred. For better appreciation, I may refer paras. 9 to 11 of the petition filed under Section 142(B) of the Act and it they are thus:

“9. It is submitted that after receipt of legal notice respondents/accusedapproached petitioner/complainant and proposed for amicable settlement of alldisputes between them for which petitioner/complainant without knowing realintentions of respondents/accused, this petitioner/complainant in good faith andhaving trust and confidence over them, readily accepted their proposal and thispetitioner/complainant prior to filing of present case he filed another case videC.C.No.215 of 2011 which is pending before this Hon’ble Court for adjudication,as respondent/accused has informed to petitioner/complainant for settlement ofall disputes for which this petitioner/complainant readily agreed for the saidsettlement.

10. In fact one of the conditions of the mutual settlement was thatpetitioner/complainant shall withdraw the collateral security lodged with the bankduly depositing certain amounts in the firm account and the same was fulfilledin the month of August/September, 2011 by the petitioner/complainant.

11. It is the petitioner/complainant many times brought torespondents/accused notice about their promise for settlement of disputesespecially about the payment of dishonoured cheque amount topetitioner/complainant, but, respondent/accused intentionally by hatching a planto cause the delay they with a malafide and dishonest intentions have not comeforward for settlement and breached their promise this fact clearly establishestheir cheating nature and dilly dallied tactics, due to all the above reasons delaywas caused in filing the complaint within limitation period before this Hon’bleCourt.”

The petitioners resisted the said application by filing counter. However, in the counter, they did not dispute of pendency ofO.S.No.1052 of 2011 on the file of III Additional Chief Judge, City CivilCourt, Hyderabadj. For better appreciation, I may refer para.6 ofcounter, which reads as hereunder:

“6. In reply to para. No.9 to 11, the respondents submit that on receipt ofLegal Notice, dated 25.06.2011 the respondents questioned the petitioner abouthis fraudulent behaviour in involving them in false criminal cases and also filingO.P.No.1052 of 2011 on the file of the III Addl. Chief Judge, City Civil Court,Hyderabad, posing himself as partner of M/s.Sri Balaji Pipe Industries andfurther issuing false legal notice dated 25.6.2011 without any legal basis. Onthat the petitioner requested to discharge his house property from collateralsecurity and relieve him as guarantor to respondent No.2 proprietary concernand respondents agreed for the same. The petitioner has given undertakingthat he will withdraw all the cases filed by him on 30.7.2011. The petitioner alsoaddressed a letter to the Branch Manager, S.B.H., Baghlingampally Branch,Hyderabad that in view of settlement between the respondents is going towithdrawing his case O.P.No.1052 of 2011 filed before the III Addl. Chief Judge,City Civil Court, Hyderabad on 8.9.2011. The Bank Authorities also addresseda letter to the Sub-Registrar, Banjara Hills, for cancellation of Mortgage ofHouse Property of the petitioner on 15[th] September, 2011. In spite of thesettlement already arrived, the Petitioner/complainant filed a false case on31.10.2011 with the present petition to condone the delay of 70 days underSection 142 (B) of N.I.Act.

The learned XVII Additional Chief Metropolitan Magistrate, onconsidering the material brought on record and on hearing the counselappearing for the parties, came to the conclusion that the complainantfailed to make out sufficient cause to condone the delay and therebyproceeded to dismiss the petition, by order, dated 16.03.2012. Thecomplainant assailed the order, dated 16.03.2012, passed inCrl.M.P.No.3061 of 2011 by filing Criminal Revision Petition No.132 of2012 on the file of I Additional Metropolitan Sessions Judge, Hyderabad. The learned Additional Metropolitan SessionsJudge, on reappraisal of the material brought on record and relying onthe proposition of law laid down in State of West Bengal v.Administrator, Howrah Municipal[[1]], proceeded to set aside theorder, dated 16.03.2012, passed in Crl.M.P.No.3061 of 2011 andcondoned the delay of 70 days in filing the complaint, by order, dated12.09.2012. Hence, this Criminal Revision Case.

3. Heard learned counsel appearing for the petitioners and perusedthe order impugned in the revision case.

4. Learned counsel appearing for the petitioners submits that afterissuance of the statutory notice, there were no negotiations with regardto the amount covered under the cheque, in which case, it isimpermissible for the complainant to contend that the delay in filing thecomplaint was due to negotiations between the parties.

5. I have gone through the counter filed by the petitioners inCrl.M.P.No.3061 of 2011. Three dates are required to be noted. Dateof notice is 25.06.2011. Undertaking stated to have been given by thecomplainant is 30.07.2011 and the assurance given by the petitionersto the complainant to withdraw the case is 08.09.2011. These threedates indicate that there were some talks between the parties eitherwith regard to settlement of cheque amount or with regard to the othertransactions. The revisional Court on thorough consideration of thematerial brought on record came to the conclusion that the delay of 70days has been properly explained. I do not see any illegality orirregularity in the order impugned in the revision case warrantinginterference of this Court in exercise of power under Sections 397 and401 Cr.P.C.

6. Accordingly, the Criminal Revision Case is dismissed.

______________________

Date:28[th] December, 2012.

B.SESHASAYANA REDDY, J.

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THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY

Date:28th December, 2012

[1]CDJ 1971 S.C. 628