JUDGMENT :

1. The petitioner is the accused in CC.No.147 of 2015 on the file of Judicial Magistrate of First Class, Kanigiri, for the offence under Section 138 of the Negotiable Instruments Act maintained by the 2nd respondent-complainant. This petition is filed to quash the said CC with cognizance order of the learned Magistrate.

2. The contentions in seeking to quash the complaint case are that the complaint was filed on 21.04.2015 for the cheque bearing No.229565 dated 27.01.2015 said to have been issued by the accused in favour of the complainant, when presented returned dishonoured for Rs.20,00,000/- for alleged part discharge of the pronote debt and the cheque was returned dishonoured on 03.02.2015 for funds insufficient, from which within one month thereafter statutory notice was issued that was served on the accused on 03.03.2015 and within 15 days thereafter by 18.03.2015 payment not made and from the cause of action the complaint within one month there from stated filed, but in fact not filed within time in saying after the 15 days time for payment ending by 18.03.2015 supra the cause of action for one month to be counted even one day excluded in its counting the complaint must be filed well within 19/20.04.2015 and the same filed on 21.04.2015 is hopelessly after expiry of the cause of action of one month no way sustainable and thereby liable to be quashed.

3. The learned counsel for the petitioner/accused reiterated the same, whereas the learned counsel for the complainant submits that the complaint is filed well within time and no way bar and the cognizance was rightly taken and there is nothing for the Court to interfere, but for left open of defence to put forth during trial by accused and sought for dismissal.

4. A perusal of the served complaint shows the same was filed before the Court on 21.04.2015 and it contains Court seal with date in the complaint running in 3 pages, the date originally mentioned as 20.04.2015 corrected as 21.04.2015 at the place of signature of complainant and place of signature of advocate though not in the verification portion 3rd line of 20.04.2015. The crux is whether it is filed within 30 days and if not, filed with any application to condone the delay in filing as contemplated by Section 142(b) of the Act. Needless to say if at all any application to condone the delay in filing made it is only after notice and hearing for condoning that delay to be decided and not without hearing for certain rights accrue to the accused after expiry to the statutory notice of one month from cause of action to file the complaint which cannot be interfered without opportunity to accused. The expression in this regard of this Court referring to the Supreme Court in D.Shyam Sunder Vs. Neella Prabhu Lingamurthy and Another (2010 (1) ALD Crl 431 AP), leave about the observations in the Constitution Bench expression of the Apex court in Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director-Dr. K.M. Cherian & Others (2014 (2) SCC 62), referring to Vanka Radhamanohari (Smt) Vs. Vanka Venkata Reddy (1993 (3) SCC 4) and State of Maharashtra Vs. Sharadchandra Vinayak Dongre (1995 (1) SCC 42) held as follows:

“At Para 26 it is observed that if the complaint is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 Cr.P.C. The Court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not.

At Para 27 it is observed referring to expression in Vanka Radhamanohari supra on the scope of Section 473 Cr.P.C. that the provision enjoins a duty on the court to examine not only whether such delay has been explained but as to whether, it is the requirement of justice to ignore such delay.”

5. From this when undisputedly there is no such application to condone the delay for not a case of filed with any delay condonation application and allowed even, leave about if with