ORDER :

1. In this petition filed under Section 482 of Cr.P.C. the petitioner/accused seeks to quash proceedings against him in C.C. No. 294 of 2012 which was taken cognizance for the offences under Sections 138 & 142 of Negotiable Instruments Act, 1881 (for short “NI Act”) by Judicial Magistrate of First Class-cum-Spl. Mobile Magistrate, SPSR Nellore.

2. The respondent/complainant filed a private complaint alleging that the complainant and accused entered into an undertaking dated 03.06.2009 whereby the accused has to supply 700 KL of bio-diesel worth Rs.2,10,00,000/-. The accused received the said amount from the complainant company but supplied only 611.70 KL of bio-diesel, but could not supply the remaining 88.30 KL worth Rs.26,49,000/-. Hence, the accused issued a cheque bearing No. 250650, dated 03.06.2009 for Rs.26,49,000/-drawn on State Bank of India, Lallacheruvu Branch, Rajahmundry in favour of complainant company in discharge of his legal liability. The complainant company presented the said cheque on 22.10.2009 in the Axis Bank, Nellore for collection, but the cheque was returned dishonoured by the State Bank of India, Lallacheruvu, Rajahmundry with the endorsement “funds insufficient.” The complainant received the said information on 26.10.2009 and then got issued the statutory notice to the accused on 12.11.2009 and the same was returned to the complainant on 05.12.2009 as ‘un-served’. According to the complainant, he has to file complaint within 45 days from 05.12.2009 i.e. on or before 20.01.2010, but he filed complaint on 30.01.2010. Hence, the complainant filed a delay condonation petition in Crl. M.P. No. 596 of 2010 under Section 142 (b) of N.I. Act to condone the delay and the said petition appears to have been allowed by the trial Court and a complaint was taken cognizance.

Hence the instant petition.

3. Heard learned counsel for petitioner Sri Srinivas Kapatia and learned counsel for respondent No. 2/defacto complainant Sri Dammalapati Srinivas.

4. The first and foremost contention of learned counsel for petitioner is that since the complaint petition was filed with delay, the trial Court instead of directly allowing the petition, ought to have afforded notice to the petitioner/accused and after receiving counter ought to have decided the petition on merits. Since the trial Court allowed the petition straightaway, the petitioner/accused lost valuable right to oppose the delay petition. Therefore, the cognizance of the complaint is vitiated by law. He placed reliance on a decision in Annapureddy Srinivasa Reddy vs. State of Andhra Pradesh and another , 2019 (1) ALD (Crl.) 812 to contend that notice is must in delay condoning petition.

(a) Learned counsel also raised several other grounds and would contend that the complaint is not maintainable.

5. Per contra, learned counsel for respondent No. 2 would contend that the trial Court has power to condone the delay without issuing notice to the accused as the trial Court has discretion to condone the delay and proviso to Section 142 (b) of NI Act did not specify issuance of notice to the accused. He also refuted the other grounds raised by the petitioner.

6. The point for consideration is whether there are merits in the criminal petition to allow?

7. I gave my anxious consideration to the above respective arguments. Section 142 (b) of NI Act deals with the period within which a complaint has to be filed. It reads thus:

142. (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

Provided that the cognizance of a complaint may be tak