Isabella Mariam

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has issued a directive setting aside the dismissal of two complaints filed under Section 138 of the Negotiable Instruments Act. The Court held that the appellant had demonstrated a legitimate impediment to prosecuting the complaints due to his incarceration and subsequent medical complications. The trial magistrate had dismissed the complaints for non-prosecution, but the High Court concluded that the appellant was "prevented by a sufficient cause from filing the appeals within the prescribed period of limitation." Consequently, the Court condoned the delays in filing the appeals, granted leave to appeal, and allowed both appeals, directing the trial magistrate to resume proceedings in accordance with law.

The appellant filed two separate complaints under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate, Sopore. The complaints pertained to two cheques issued by the respondent in favour of the appellant, each amounting to Rs. 2,00,000. The first cheque, dated 31.08.2022, formed the subject matter of one complaint, while the second, dated 05.08.2022, was the basis of the other complaint.

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Both complaints were filed on 28.11.2022, and on 08.02.2023, the learned Chief Judicial Magistrate took cognizance and issued process against the respondent. However, on 14.09.2023, the trial magistrate dismissed both complaints for non-prosecution, citing the continued absence of the complainant.

The appellant filed CrlA(AS) No.42/2024 on 04.09.2023 and CrlA(AS) No.43/2024 on 10.12.2024, resulting in a delay of 357 days and 363 days, respectively. The appellant sought condonation of delay and leave to appeal, citing his arrest on 20.04.2023 in connection with FIR No.125/2023 at Police Station Bahu Fort, Jammu, involving offences under the NDPS Act and Arms Act.

He was granted interim bail on 02.08.2024, which was extended on 27.09.2024 and made absolute on 15.10.2024. The appellant submitted that his period of incarceration and subsequent illness prevented him from appearing before the trial court or filing the appeals in time.

The respondent opposed the application, arguing that the appellant was represented before the trial court by a special power of attorney holder, whose preliminary statement led to cognizance and issuance of process. The respondent contended that the appellant's absence did not justify the delay since the attorney could continue representing him.

Despite these objections, the respondent did not dispute the appellant's arrest or the period of incarceration.

Justice Sanjay Dhar recorded, "The ground urged by the appellant for condoning the delay in filing the appeals, as also for setting aside the orders of dismissal passed by the learned trial Magistrate, is that he remained in custody w.e.f 20.04.2023 up to 02.08.2024 and was granted absolute bail only on 15.10.2024, that too on the medical grounds." The Court acknowledged that this circumstance made it unfeasible for the appellant to appear before the trial magistrate or file timely appeals.

The Court noted, "So far as incarceration of the appellant with effect from 20.04.2023 to 02.08.2024 is concerned, the same is not in dispute." A copy of the bail order was placed on record, which indicated that the appellant developed medical complications during incarceration. Justice Dhar observed, "He was granted temporary bail by the concerned Court, which was extended from time to time and finally made absolute on 15.10.2024."

Further, the Court stated, "Appellant has been able to show that he was prevented by a sufficient cause from filing the appeals within the prescribed period of limitation. He has also succeeded in showing that on account of this very reason he was prevented from appearing before the learned trial Magistrate when the impugned orders dated 14.09.2023 dismissing his complaints for non-prosecution were passed."

Regarding the respondent's contention that the attorney holder could have managed the case, the Court recorded, "I am afraid the same cannot be accepted, because once it has been established that the appellant was in incarceration for a pretty long time, it would not have been possible for him to manage and supervise the performance and functions of his attorney."

Justice Dhar reiterated, "Besides the petitioner being in custody w.e.f 20.04.2023 up to 02.08.2024, he was also suffering from medical complications which needed immediate treatment upon his release from the custody."

The Court concluded that these circumstances constituted a "sufficient cause" for both the delay in filing appeals and the absence before the trial court.

Justice Sanjay Dhar held, "The applications for condonation of delay in filing the two appeals are allowed and the applications for leave to file the appeals against the impugned orders dated 14.09.2023 passed by learned Chief Judicial Magistrate, Sopore are also allowed."

The Court further recorded, "The appeals upon being taken up for consideration are also allowed in view of the reasons discussed hereinabove and impugned orders dated 14.09.2023 passed by learned trial Magistrate in the two complaints, which are subject matter of present appeals, are set aside."

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The Court directed, "Learned trial Magistrate is directed to proceed further in the two complaints which are subject matter of these two appeals, in accordance with law."

The order concluded by stating, "The applications for condonation of delay alongwith leave to file the appeals and the appeals shall stand disposed of in the above terms."

The Court also directed that a copy of the order be sent to the trial court: "Copy of this order be sent to the learned Chief Judicial Magistrate, Sopore for information and compliance."

Advocates Representing the Parties:

For the Petitioner: Mr. Aasif Wani, Advocate

For the Respondent: Mr. Aftab Ahmad, Advocate

Case Title: Waheed Shafi Sheikh v. Naseer Ahmad Ganie

Case Number: CrlA(AS) No.42/2024 & CrlA(AS) No.43/2024

Bench: Justice Sanjay Dhar