Himachal Pradesh High Court
Basu Dev Sharma vs Sunita Sharma on 13 July, 2026
2026:HHC:28289
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 629 of 2026
Reserved on: 22.06.2026
.
Date of Decision: 13.07.2026
Basu Dev Sharma ...Petitioner
Versus
Sunita Sharma ...Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
For the Petitioner
rt
Whether approved for reporting?1
:
No.
Mr Deepak Sharma, Advocate.
For Respondent : Nemo
Rakesh Kainthla, Judge
The petitioner has filed the present petition for setting
aside the order dated 06.04.2026, passed by the learned Additional
Sessions Judge-II, Shimla (Camp at Theog), District Shimla, H.P.
(learned Revisional Court), vide which the order dated 02.11.2023
passed by the learned Additional Chief Judicial Magistrate, Theog,
District Shimla (learned Trial Court), was upheld. (The petitioner
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present
petition are that the respondent (Complainant before learned Trial
.
Court) filed a complaint under Section 138 of the Negotiable
Instruments Act (NI Act) before learned Additional Chief Judicial
Magistrate, Theog, District Shimla, HP., which was registered as
Criminal Case No. 183 of 2020. The learned Trial Court held vide
of
judgment dated 18.01.2023 that the complaint was premature, and
dismissed the complaint.
3.
rt
The complainant filed a fresh complaint before the
Learned Trial Court along with an application under Section 142 of
the NI Act for condonation of the delay in filing the complaint. It
was asserted that the earlier complaint was held to be premature
and the complainant was entitled to file a fresh complaint in terms
of the judgment of Hon’ble Supreme Court in Yogendra Pratap
Singh vs. Savitri Pandey 2014(10) SCC 713 and Gajanand Burange v.
Laxmi Chand Goyal, 2022 SCC OnLine SC 1711. The delay occurred
because of the prosecution of the earlier complaint. Hence, it was
prayed that the delay be condoned.
4. Notice of the application was issued to the accused (the
petitioner in the present petition), who filed a reply asserting that
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the complaint was to be filed within one month from the date of
the decision in the earlier complaint and only then the delay in
.
filing the complaint would be treated to have been condoned
under Proviso (b) of Section 142 of the N.I. Act. In the present case,
the complaint was filed on 21.02.2023, beyond one month. There
was a delay of 34 days from the date of the decision, and the fresh
of
complaint was time-barred. Therefore, it was prayed that the
present application be dismissed.
5.
rt
Learned Trial Court held that the complainant was
diligently prosecuting the earlier complaint with effect from
11.03.2020 till 18.01.2023. The time between 19.01.2023 and
27.01.2023 was spent in preparing the certified copy and was to be
excluded. The complainant had a sufficient cause for the
condonation of the delay. Hence, the delay was condoned.
6. Being aggrieved by the order passed by the learned
Trial Court, the accused filed a revision, which was decided by the
learned Additional Session Judge No. II, Shimla, (Camp at Theog),
District Shimla, H.P. (learned Revisional Court). Learned
Revisional Court held that the complainant could have filed a
complaint within one month of the dismissal of her earlier
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complaint. The application was filed on 04.02.2023, which was
within one month. Learned Trial Court had rightly condoned the
.
delay. Hence, the revision was dismissed.
7. Being aggrieved by the orders passed by the learned
Courts below, the petitioner/accused has filed the present
petition, asserting that the learned Courts below failed to properly
of
appreciate the material on record. The complaint was dismissed
on 18.01.2023, and no liberty was granted to file a fresh complaint.
rt
Learned Trial Court erred in entertaining a fresh complaint in the
absence of liberty. The complainant had failed to disclose any
sufficient cause for condonation of the delay. The complaint was
filed on 21.02.2023, and the delay was mechanically condoned.
Therefore, it was prayed that the present petition be allowed and
the orders passed by the learned Courts below be set aside.
8. Mr Deepak Sharma, learned counsel for the
petitioner/accused, submitted that the learned Trial court erred in
condoning the delay in filing the second complaint. No liberty was
granted to the complainant to file a fresh complaint, and the
second complaint was not maintainable. The term sufficient cause
has to be strictly construed, and there was no sufficient cause in
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the present case. Hence, he prayed that the present petition be
allowed and the order passed by the learned Courts below be set
.
aside. He relied upon the following judgments in support of his
submissions: –
 N. Mohandoss vs. The Management of Darasuram
& anr. W.P. No. 37399 of 20024, decided on
08.07.2021;
of
 K.B.Lal (Krishna Bahadur Lal) vs. Gyanendra Pratap
& ors. 2024: INSC 281;
 State (NCT of Delhi) vs. Ahmed Jaan 2008(14)SCC
rt582;
 Pathapati Subba Reddy (died) by LRs & Ors. vs. The
special Deputy Collector (LA) 2024 INSC 286;
 Sarguja Transport Service vs. State Transport
Appellate Tribunal 1987 SCC (1) 5; and
 Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC
OnLine SC 1711.
9. I have given a considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. It is undisputed that the petitioner had filed a revision
before the learned Revisional Court, which was dismissed by the
learned Revisional Court. It was laid down by the Hon’ble Supreme
Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC 241 that the High
Court can intervene under Section 482 of CrPC (corresponding to
Section 528 of BNSS) when there is a grave miscarriage of justice
or abuse of the process of the Court. It was observed:
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“10. Ordinarily, when revision has been barred by Section
397(3) of the Code, a person — accused/complainant —
cannot be allowed to take recourse to the revision to the
High Court under Section 397(1) or inherent powers of the
.
High Court under Section 482 of the Code since it may
amount to circumvention of the provisions of Section
397(3) or Section 397(2) of the Code. It is seen that the High
Court has suo motu power under Section 401 and continuous
supervisory jurisdiction under Section 483 of the Code. So,
when the High Court on examination of the record finds
that there is a grave miscarriage of justice or abuse of the
of
process of the courts or the required statutory procedure
has not been complied with or there is failure of justice or
order passed or sentence imposed by the Magistrate
requires correction, it is but the duty of the High Court to
rt
have it corrected at the inception lest grave miscarriage of
justice would ensue. It is, therefore, to meet the ends of
justice or to prevent abuse of the process that the High
Court is preserved with inherent power and would be
justified, under such circumstances, to exercise the
inherent power and, in an appropriate case, even revisional
power under Section 397(1) read with Section 401 of the
Code. As stated earlier, it may be exercised sparingly to
avoid needless multiplicity of procedure, unnecessary delay
in trial and protraction of proceedings. The object of a
criminal trial is to render public justice, to punish the
criminal and to see that the trial is concluded expeditiously
before the memory of the witness fades out. The recent
trend is to delay the trial and threaten the witness or to win
over the witness by promise or inducement. These
malpractices need to be curbed, and public justice can be
ensured only when the trial is conducted expeditiously.
11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC
551: 1978 SCC (Cri) 10], a three-judge Bench was to consider
the scope of the power of the High Court under Section 482
and Section 397(2) of the Code. This Court held that the bar
on the power of revision was put to facilitate expedient
disposal of the cases, but in Section 482, it is provided that
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nothing in the Code, which would include Section 397(2)
also, shall be deemed to limit or affect the inherent powers
of the High Court. On a harmonious construction of the said
two provisions on this behalf, it was held that though the
.
High Court has no power of revision in an interlocutory
order, still the inherent power will come into play when
there is no provision for redressal of the grievance of the
aggrieved party. In that case, when allegations of
defamatory statements were published in the newspapers
against the Law Minister, the State Government decided to
prosecute the appellant for an offence under Section 500
of
IPC. After obtaining the sanction, on a complaint made by
the public prosecutor, cognisance of the commission of the
offence by the appellant was taken to trial in the Sessions
Court. Thereafter, the appellant filed an application to
rt
dismiss the complaint on the ground that the court had no
jurisdiction to entertain the complaint. The Sessions Judge
rejected all the contentions and framed the charges under
Section 406. The Order of the Sessions Judge was
challenged in revision in the High Court. On a preliminary
objection raised on maintainability, this Court held that the
power of the High Court to entertain the revision was not
taken away under Section 397 or inherent power under
Section 482 of the Code.
12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980
SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393), a four-judge
Bench per majority held that sub-section (3) of Section 397,
however, does not limit at all the inherent powers of the
High Court contained in Section 482. It merely curbs the
revisional power given to the High Court or the Sessions
Court under Section 397(1) of the Code. In the Rajan Kumar
Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537],
the case related to the release of a truck from attachment,
obviously on the filing of an interlocutory application. It
was contended that there was a prohibition on the revision
by operation of Section 397(2) of the Code. In that context,
it was held that it was not reviewable under Section 482 in
the exercise of inherent powers by operation of sub-section
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(3) of Section 397. On the facts in that case, it was held that
by provisions contained in Section 397(3), the revision is
not maintainable. In the Dharampal case [(1993) 1 SCC 435:
1993 SCC (Cri) 333], which related to the exercise of power to
.
issue an order of attachment under Section 146 of the Code,
it was held that the inherent power under Section 482 was
prohibited. On the facts, in that case, it could be said that
the learned Judges would be justified in holding that it wasnot revisable since it was a prohibitory interim order of
attachment covered under Section 397(2) of the Code but
the observations of the learned Judges that the High Courtof
had no power under Section 482 of the Code were not
correct in view of the ratio of this Court in Madhu Limaye
case [(1977) 4 SCC 551: 1978 SCC (Cri) 10] as upheld in V.C.
Shukla case [1980 Supp SCC 92: 1980 SCC (Cri) 695 : (1980) 2
rt
SCR 380] and also in view of our observations stated earlier.
The ratio in the Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri)
1020] is also not apposite to the facts in the present case. Tothe contrary, in that case, an application for discharge of
the accused was filed in the Court of the Magistrate for an
offence under Section 498-A IPC. The learned Magistrate
and the Sessions Judge dismissed the petition. In therevision at the instance of the accused, on a wrong
concession made by the counsel appearing for the State that
the record did not contain allegations constituting theoffence under Section 498-A, the High Court, without
applying its mind, had discharged the accused. On appeal,this Court, after going through the record, noted that the
concession made by the counsel was wrong. The record did
contain the allegations to prove the charge under Section498-A IPC. The High Court, since it failed to apply its mind,
had committed an error of law in discharging the accused,
leading to the miscarriage of justice. In that context, this
Court held that the order of the Sessions Judge operated as a
bar to entertain the application under Section 482 of the
Code. In view of the fact that the order of the High Court
had led to the miscarriage of justice, this Court had set aside
the order of the High Court and confirmed that of the
Magistrate.
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13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990
SCC (Cri) 327] has no application to the facts in this case.
Therein, on a private complaint filed under Sections 452
and 323 IPC, the Judicial Magistrate, First Class, had taken
.
cognisance of the offence. He transferred the case for
inquiry under Section 202 of the Code to the Second-Class
Magistrate, who, after examining the witnesses, issued a
process to the accused. The High Court, exercising the
power under Section 482, dismissed the revision. But
subsequently, on an application filed under Section 482 of
the Code, the High Court corrected it. The question was
of
whether the High Court was right in reviewing its order. In
that factual backdrop, this Court held that the High Court
could not exercise inherent power for the second time. The
ratio therein, as stated above, has no application to the
rt
facts in this case.
14. In view of the above discussion, we hold that though the
revision before the High Court under sub-section (1) of
Section 397 is prohibited by sub-section (3) thereof,
inherent power of the High Court is still available under
Section 482 of the Code and as it is paramount power of
continuous superintendence of the High Court under
Section 483, the High Court is justified in interfering with
the order leading to miscarriage of justice and in setting
aside the order of the courts below. It remitted the case to
the Magistrate for a decision on the merits after
consideration of the evidence. We make it clear that we have
not gone into the merits of the case. Since the High Court
has left the matter to be considered by the Magistrate, it
would be inappropriate at this stage to go into that
question. We have only considered the issue of power and
jurisdiction of the High Court in the context of the
revisional power under Section 397(1) read with Section
397(3) and the inherent powers. We do not find any
justification warranting interference in the appeal.”
11. This position was reiterated in Rajinder Prasad v.
Bashir, (2001) 8 SCC 522, wherein it was held:
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“…though the power of the High Court under Section 482 of
the Code is very wide, the same must be exercised sparingly
and cautiously, particularly in a case where the petitioner is
shown to have already invoked the revisional jurisdiction.
under Section 397 of the Code. Only in cases where the High
Court finds that there has been a failure of justice or misuse
of judicial mechanism or procedure, a sentence or order was
not correct, the High Court may, in its discretion, preventthe abuse of the process or miscarriage of justice by
exercise of jurisdiction under Section 482 of the Code. It
was further held, “Ordinarily, when revision has beenof
barred by Section 397(3) of the Code, a person –
accused/complainant – cannot be allowed to take recourse
to the revision to the High Court under Section 397(1) or
inherent powers of the High Court under Section 482 of the
rt
Code since it may amount to circumvention of provisions of
Section 397(3) or Section 397(2) of the Code.”
12. A similar view was taken in Kailash Verma v. Punjab
State Civil Supplies Corporation, (2005) 2 SCC 571, and it was held:
“5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118] said that the
power under Section 482 of the Criminal Procedure Codehas to be exercised sparingly and such power shall not be
utilised as a substitute for second revision. Ordinarily, whena revision has been barred under Section 397(3) of the Code,
the complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section397(1) of the Criminal Procedure Code, as it is prohibited
under Section 397(3) thereof. However, the High Court can
entertain a petition under Section 482 of the Criminal
Procedure Code when there is a serious miscarriage of
justice and abuse of the process of the court or when
mandatory provisions of the law are not complied with and
when the High Court feels that the inherent jurisdiction is
to be exercised to correct the mistake committed by the
revisional court.”
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13. This position was reiterated in Shakuntala Devi v.
Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC
.
OnLine SC 292, wherein it was observed: –
“24. It is well settled that the object of the introduction of
sub-section (3) in Section 397 was to prevent a secondrevision to avoid frivolous litigation, but, at the same time,
the doors to the High Court to a litigant who had lost before
the Sessions Judge were not completely closed, and inof
special cases, the bar under Section 397(3) could be lifted.
In other words, the power of the High Court to entertain a
petition under Section 482 was not subject to the
prohibition under sub-section (3) of Section 397 of the
rt
Code and was capable of being invoked in appropriate cases.
Mr Sanyal’s contention that there was a complete bar under
Section 397(3) of the Code, debarring the High Court fromentertaining an application under Section 482 thereof, does
not, therefore, commend itself to us.
25. On the factual aspect, the Magistrate came to a finding
that the appellants were entitled to possession of the
disputed plot. It is true that while making such a declaration
under Section 145(4) of the Code, the Magistrate could havealso directed that the appellants be put in possession of the
same.
26. The question which is now required to be considered is
whether the High Court was right in quashing the order
passed by the Magistrate, which was confirmed by theSessions Judge, on the ground that the application made by
the appellants under Section 145(6) of the Code was barred
firstly by limitation under Article 137 of the Limitation Act
and also by virtue of Section 6 of the Specific Relief Act,
1963.
14. Delhi High Court also took a similar view in Surender
Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —
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“5. The issue regarding the filing of a petition before the
High Court after having availed the first revision petition
before the Court of Sessions has come up before the
Supreme Court and this Court repeatedly. While laying that
.
section 397(3) Cr. P.C. laid the statutory bar of the second
revision petition, the courts have held that the High Court
did enjoy inherent power under section 82 (sic) Cr. P.C. as
well to entertain petitions even in those cases. But that
power was to be exercised sparingly and with great caution,
particularly when the person approaching the High Court
has already availed a remedy of first revision in the Sessions
of
Court. This was not that in every case the person aggrieved
by the order of the first revision court would have the right
to be heard by the High Court to assail the same order which
was the subject matter of the revision before the Sessions
rt
Court. It all depends not only on the facts and
circumstances of each case but also on whether the
impugned order brought about a situation that is an abuse
of the process of the court, there was a serious miscarriage
of justice or the mandatory provisions of law were not
complied with. The power could also be exercised by this
Court if there was an apparent mistake committed by the
revisional court. Reference in this regard can be made to the
judgments of the Supreme Court in Madhu Limave v. State of
Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram Chander
Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai Kapoor v.
State (Delhi Administration) 1980 Cri LJ 202, Krishnan v.
Krishnaveni and Kailash Verma v. Punjab State Civil Supplies
Corporation (2005) 2 SCC 571.”
15. It is apparent from the judgments that the High Court
has a limited jurisdiction, and it can rectify a serious miscarriage
of justice or a breach of a mandatory provision of law while
exercising its jurisdiction under Section 528 of BNSS
corresponding to Section 482 of Cr.P.C.
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16. The Hon’ble Supreme Court had held in Yogendra
Pratap Singh (supra) that the payee or the holder in due course of
.
the cheque may file a fresh complaint within one month from the
date of the decision in the criminal case, and the delay in filing the
complaint would be treated as having been condoned under
Proviso b of Section 142 of the NI Act. This position was
of
reiterated in Gajanand Burange (supra), wherein it was observed: –
5. The issue which is raised in this appeal is no longer res
integra and is covered by a three-Judge bench decision of
rt
this Court in Yogendra Pratap Singh v. Savitri Pandey (2014)
10 SCC 713. Two issues were formulated for decision before
the three-Judge Bench, which were:
“1.1. (i) Can cognisance of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 be
taken on the basis of a complaint filed before the expiryof the period of 15 days stipulated in the notice required
to be served upon the drawer of the cheque in terms of
Section 138(c) of the Act aforementioned? And,1.2. (ii) If the answer to Question 1 is in the negative, can
the complainant be permitted to present the complaintagain, notwithstanding the fact that the period of one
month stipulated under Section 142(b) for the filing of
such a complaint has expired?”
6. The first issue was resolved by paragraph 35 of the
judgment, which is extracted below:
“35. Can an offence under Section 138 of the NI Act
be said to have been committed when the period
provided in clause (c) of the proviso has not expired?
Section 2(d) of the Code defines “complaint”.
According to this definition, a complaint means any
allegation made orally or in writing to a Magistrate
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with a view to taking his action against a person who
has committed an offence. Commission of an offence
is a sine qua non for filing a complaint and for taking
cognisance of such offence. A bare reading of the
.
provision contained in clause (c) of the proviso makes
it clear that no complaint can be filed for an offence
under Section 138 of the NI Act unless the period of 15
days has elapsed. Any complaint filed before the
expiry of 15 days from the date on which the notice
has been served on the drawer/accused is no
complaint at all in the eyes of the law. It is not the
of
question of prematurity of the complaint where it is
filed before the expiry of 15 days from the date on
which notice has been served on him; it is no
rt complaint at all under the law. As a matter of fact,
Section 142 of the NI Act, inter alia, creates a legal bar
on the court from taking cognisance of an offence
under Section 138 except upon a written complaint.
Since a complaint filed under Section 138 of the NI Act
before the expiry of 15 days from the date on which
the notice has been served on the drawer/accused is
no complaint in the eye of the law, obviously, no
cognisance of an offence can be taken on the basis of
such a complaint. Merely because at the time of
taking cognizance by the court, the period of 15 days
has expired from the date on which notice has been
served on the drawer/accused, the court is not
clothed with the jurisdiction to take cognizance of an
offence under Section 138 on a complaint filed before
the expiry of 15 days from the date of receipt of notice
by the drawer of the cheque.”
7. In the present case, while the notice was received by the
appellant on 8 November 2005, the complaint was filed
before the period of fifteen days was complete. The
complaint could have been filed only after 23 November
2005, but was filed on 22 November 2005. In view of the
legal bar which is created by Section 142 of the NI Act, as
explained in the three-Judge Bench decision of this Court,
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taking of cognisance by the Court was contrary to the law
and the complaint was not maintainable before the expiry
of the period of fifteen days from the date of its receipt by
the appellant.
.
8. However, on behalf of the respondent, it has been urged
that the second issue, which was raised before the three-
Judge Bench, has been dealt with in the following terms:
“41… Now, since our answer to Question (i) is in the
negative, we observe that the payee or the holder in
due course of the cheque may file a fresh complaintof
within one month from the date of decision in the
criminal case and, in that event, delay in filing the
complaint will be treated as having been condoned
rtunder the proviso to clause (b) of Section 142 of the
NI Act. This direction shall be deemed to apply to all
such pending cases where the complaint does notproceed further in view of our answer to Question (i).
As we have already held that a complaint filed before
the expiry of 15 days from the date of receipt of notice
issued under clause (c) of the proviso to Section 138 isnot maintainable, the complainant cannot be
permitted to present the very same complaint at any
later stage. His remedy is only to file a fresh
complaint, and if the same could not be filed withinthe time prescribed under Section 142(b), his
recourse is to seek the benefit of the proviso,
satisfying the court of sufficient cause. Question (ii) is
answered accordingly.”
9. We are of the view that the respondent would be entitled
to the benefit of the determination on the second issue, as
extracted above.
17. Thus, it is apparent that the Hon’ble Supreme Court
had itself granted the liberty to file a fresh complaint, where the
complaint was found to be premature, and the submission that a
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fresh complaint was not maintainable in the absence of the
permission cannot be accepted. The Code of Criminal Procedure
.
(CrPC) does not contemplate the granting of permission to file a
fresh complaint, and the learned Trial Court could not have
granted any such permission. However, the Hon’ble Supreme
Court had a jurisdiction under Article 142 of the Constitution of
of
India to grant such a benefit, which was granted and would be
available to the complainant in the present case as well. Thus, the
rt
judgment cited on behalf of the petitioner in Sarguja Transport
Service (supra) does not apply to the present case.
18. Both the learned courts below have concurrently held
that the complaint was filed on 04.02.2023, and it was filed within
one month from 18.01.2023, the date of dismissal of the earlier
complaint. Thus, the submission that the complaint was filed
beyond one month cannot be accepted, and the judgments in N.
Mohandoss (supra), K.B. Lal (supra) and Ahmed Jaan (supra) dealing
with the interpretation of the term ‘sufficient cause’ do not apply
to the present case.
19. An attempt was made before this Court to demonstrate
from the data downloaded from the e-Courts that the complaint
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was filed on 21.02.2023, which was beyond the period of one
month. This document will not help the petitioner because the
.
date of filing is usually mentioned as the date when the Court
applies its mind and not when the complaint is actually filed
before the Court. Since, in the present case, the date when the
complaint was actually filed is material, the findings recorded by
of
the learned Courts below have to be preferred to the endorsement
made on the website of the e-Courts.
20.
rt
Thus, the very basis of the petition that the complaint
was beyond the period of one month is fallacious, and the learned
Courts below had rightly rejected the objections preferred by the
petitioner/accused. No interference is required with the
judgments/orders passed by the learned Courts below.
21. No other point was urged.
22. In view of the above, the present petition fails, and it is
dismissed. The pending application(s), if any, also stand disposed
of.
(Rakesh Kainthla)
13th
July, 2026. Judge
(ravinder)
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