( 1 ) THIS is an appeal against the order of acquittal dated 28-12-1993 in CC No. 120/89 on the file of the learned Additional Civil Judge and Chief Judicial Magistrate, Mandya acquitting the respondent, who was charged on a private complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as the Act and Section 420, IPC.

( 2 ) A private complaint was filed by the appellant against the respondent alleging that the respondent accused purchased fruits from the complainant worth Rs. 8030/- and issued cheque for Rs. 8000/- on 5-7-1989 in favour of the complainant and when it was presented to the Bank, it was returned with endorsement "referred to drawer". It was found that the respondent accused, who had issued the cheque had no sufficient funds at his credit. As provided under Section 138 of the Act, the complainant - appellant issued notice within the time allowed, to the respondent, and thereafter filed the complaint after a delay of 24 days.

( 3 ) THE trial Court took cognizance of the offence and registered the case and the trial proceeded. The trial Court held that there was money transaction between the complainant and the accused and the accused had issued the cheque in question in favour of the complainant in discharge of his liability and later on it was dishonoured and the accused - respondent evaded to receive the notice sent by the complainant. The trial Corut held that there was compliance of the provisions of Section 138 of the Act. It also held that the complainant has proved that the liability existed on the part of the accused to repay the amount towards the cost of the fruits purchased by the accused from the complainant. It further held that the cheque was dishonoured on the ground of insufficiency of funds.

( 4 ) AFTER holding the above points in favour of the complainant, the trial Court considered the question of delay in filing the complaint. The trial Court found that the cause of action arose on 16-9-1989 and as provided for under Section 142 of the Act, the complaint ought to have been filed on or before 16-10-1989, but the complaint was filed on 9-11-1989 with a delay of 24 days. The trial Court dismissed the complaint on the ground of delay. It also rejected the application filed by the complainant for condonation of delay on the ground that the same has been filed belatedly. It accordingly dismissed the complaint.

( 5 ) SRI S. V. Tilgul, the learned counsel appearing for the appellant contended that the trial Court was wrong in not condoning the delay in filing the complaint. It is submitted that the complainant has properly explained the delay and sufficient reasons have been given by the complainant for the delay in filing the complaint and the trial Court ought to have condoned the delay and convicted the respondent.

( 6 ) THE important question that arises for consideration in this appeal is, whether the trial Court had jurisdiction to take cognizance of the offence after a period of one month as provided under Section 142 of the Act by condoning the delay in filing the complaint.

( 7 ) SECTION 142 of the Act reads as under :142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) no Court shall take cognizance of any offence under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. (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; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

( 8 ) THE learned counsel has relied upon a judgment of the Orissa High Court in Janardhan Mohapatra v. Saroj Kumar Choudhury, 1993 Cri LJ 1751. A single Judge of the Orissa High Court has held that complaint i