Bombay High Court

ESSA MERCHANTversusSALASAR BALAJI INFOCOME AND ORS.

Decided: 31 August 2026
Disposal: Disposed Off

Holding

The High Court held that when loss of the original complaint is proved by postal receipts and other secondary evidence, the petitioner may be permitted to reconstruct the complaint under Section 138 of the Negotiable Instruments Act, and the limitation period cannot be invoked.

Summary

The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate First Class, Sikar, which was transferred by post to the Metropolitan Magistrate Court, Esplanade, Mumbai. The original complaint papers were subsequently lost or misplaced, prompting the petitioner to seek reconstruction of the complaint. The Chief Metropolitan Magistrate rejected the reconstruction application, stating no complaint had been received. The petitioner challenged this order before the Bombay High Court, submitting postal receipts and photocopies as proof of the original filing and transfer. The High Court held that the petitioner was not at fault for the loss and that secondary evidence could be admitted to reconstruct the complaint. Consequently, the court quashed the magistrate’s order, allowed the petition, and permitted reconstruction of the complaint without raising any limitation defence.

Issues considered

Whether a complaint under Section 138 of the Negotiable Instruments Act may be reconstructed when the original documents are lost or misplaced.
Whether the limitation period can be invoked to bar reconstruction of the complaint.
Whether secondary evidence is admissible for the purpose of reconstructing a lost complaint.

Legislation cited

Negotiable Instruments Act, 1881 — s. 138

Subjects

Section 138 NI Act
complaint reconstruction
lost documents
secondary evidence
limitation period
criminal procedure
high court writ petition

Judgment

36-WP-4086-2019 (CR).doc

Shubhada S Kadam

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CR. WRIT PETITION NO. 4086 OF 2019

Essa Merchant ...Petitioner/s
Versus
Salasar Balaji Infocome and ors. ...Respondent/s

_________________________________________________________________

Mr. Satish Muley along with Mr. Mosin Naik and Mr. Aaron Dias,
Advocate for Petitioner.
Mr. S. R. Agarkar, APP for Respondent No.4-State.
_________________________________________________________________

CORAM : SHIVKUMAR DIGE, J.
DATE : 31st AUGUST, 2026.
P.C. :

1. The challenge in this petition is to the impugned order dated

4th April 2019 passed by the learned I/C. Chief Metropolitan Magistrate,

Esplanade, Mumbai, whereby the application for reconstruction was

rejected.

2. It is contention of learned counsel for the petitioner that the

petitioner had filed a complaint against respondents Nos. 1 and 2 under

Digitally
Section 138 of the Negotiable Instruments Act, 1881, before the learned
signed by
SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
2026.09.03 Judicial Magistrate First Class (JMFC), Court at Sikar, Rajasthan.
12:32:57
+0530

Thereafter, in pursuance of the order of the Hon'ble Supreme Court and

the amendment in the Negotiable Instruments Act, complaints from all

over India were transferred to the Courts having jurisdiction where the

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Shubhada S Kadam

cheque was deposited. Accordingly, the complaint of the petitioner was

transferred from the learned JMFC Court, Sikar, Rajasthan, to the learned

Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, and was sent by

registered post through the Indian Post by the Office of JMFC Court, Sikar,

Rajasthan, vide postal receipt No. ACR116608922 IN on 2nd March 2016

at around 10:25 am and the same was informed to the petitioner's

advocate. Learned counsel further submitted that as soon as the

petitioner came to know about the transfer of the case, he started

searching for the file through his advocate and searched all the registers

where transferred matters were recorded. The petitioner also filed a

complaint with the Government Post Office regarding the missing papers

vide complaint No. 10007351148, wherein the petitioner received a reply

that the case papers had already been delivered to the Esplanade Court on

5th March 2016 vide RL No. RMI2575681IN. After receiving the reply from

respondent No.4, the petitioner wrote a letter to the Chief Metropolitan

Magistrate seeking reconstruction of the case, as the Court was unable to

trace the file of the petitioner. Thereafter, the concerned Court orally

directed the petitioner to file a complaint before the Administrative

Department. Accordingly, the petitioner filed a complaint on 26th October

2017 but only a “Seen" remark was mentioned on his complaint.

Thereafter, the petitioner filed an application for reconstruction of the

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36-WP-4086-2019 (CR).doc

Shubhada S Kadam

complaint as the original papers were lost or misplaced in the Court. The

learned Judge rejected the said application by merely observing that “they

have not received any complaint from anywhere by this name”. Learned

counsel further submitted that the postal receipts and photocopies of the

cheque and the notice issued to respondents Nos. 1 and 2 show that the

complaint was filed before the learned JMFC at Sikar, Rajasthan, and the

postal receipts show that the documents were delivered to the

Metropolitan Magistrate Court at Esplanade. The petitioner is not at fault

but is suffering because the documents are not traceable. Hence, the

petitioner be permitted to reconstruct the complaint, and requested to

allow the petition.

3. Though respondents are served, none present for the

respondent.

4. Learned APP for respondent No.4-State submitted that

appropriate orders be passed.

5. I have heard both learned counsel, perused the impugned order.

6. It appears from the record that the complaint under Section 138

of the NI Act was filed by the petitioner before the learned JMFC at Sikar,

Rajasthan, and thereafter transferred to the learned Metropolitan

Magistrate Court, Esplanade, Mumbai. The postal receipts show the

transfer of the said papers. The photocopies of the papers produced on

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36-WP-4086-2019 (CR).doc

Shubhada S Kadam

record, including the photocopy of memo of dishonour and the notice sent

to respondents Nos. 1 and 2 after dishonour of the cheque, support the

contention of the petitioner. Considering these facts, the petitioner can be

permitted to reconstruct the complaint under Section 138 of the NI Act.

Hence, I pass following order:

ORDER

1. The petition is allowed.

2. The impugned order dated 4th April 2019 passed by the

learned I/C. Chief Metropolitan Magistrate, Esplanade,

Mumbai, is hereby quashed and set aside.

3. The petitioner is permitted to reconstruct the complaint against

respondents Nos. 1 and 2 under Section 138 of the NI Act.

4. The petitioner is permitted to lead secondary evidence.

5. The issue of limitation, if any, shall not be raised.

The petition is disposed of in above terms.

(SHIVKUMAR DIGE, J.)

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