Delay in filing the complaint under Section 138 of the Negotiable Instruments Act may be condoned if the delay is not inordinate and does not prejudice the accused.

JUDGMENT

M G Um, J. - Heard the learned advocate for the appellant Sri.R.H.Angadi, who is physically present and the learned

advocate for the respondent Sri.Shivaraj S. Balloli, through video conference.

2. The brief facts of the case are that; the appellant herein, as complainant filed a complaint under Section 200 of Cr.P.C. before the learned JMFC-I Court, Dharwad (hereinafter referred to as the 'trial Court') against the respondent for the offence punishable under Section 138 of Negotiation Instruments Act, 1881 (hereinafter referred to as 'the Act') read with Section 420 of IPC.

3. It is contended by the complainant before the trial Court that the accused had taken hand loan of Rs.50,000/- on 10.02.2009 to meet his family necessity, agreeing to repay the same within six months. After six months, when the complainant demanded back the hand loan amount, accused had issued the cheque bearing No.953920 dated 01.10.2009 drawn on Canara Bank, Dharwad for Rs.50,000/- towards repayment of the loan amount. When the said cheque was presented for encashment, the same was dishonored with an endorsement that there was "insufficient funds" in the account of the drawer. The same was intimated to the complainant through his Banker on the same day. The complainant issued legal notice to the accused on 27.10.2009, informing him regarding the dishonor of the cheque and calling upon him to repay the cheque amount. The said legal notice was served on the accused on the very next day i.e. 28.10.2009, but the same was not within the knowledge of the complainant, as he had not received the postal acknowledgment. The complainant made efforts to get the information from the postal authorities and only on 04.01.2010 he came to know that the legal notice was already served on the addressee on 28.10.2009 itself.

4. It is contended that the accused deliberately issued the cheque without maintaining the required balance in his account and he had also not repaid the cheque amount after receipt of the legal notice and thereby he has committed the offence punishable under Section 138 of the Act and requested the trial Court to take cognizance and to initiate legal action.

5. Since there was delay in filing the complaint, the complainant had filed an application under Section 141 of the Act, praying to condone the delay in filing the complaint. In the affidavit filed in support of I.A.No.1, the complainant contended that the legal notice was issued by him on 27.10.2009 but he had not received the postal acknowledgment to evidence the service of notice on the accused. Thereafter he approached the Post Office, lodged complaint and the Post Office in turn, had issued an endorsement on 04.01.2010 stating that the notice which was sent on 27.10.2009 is duly served on the accused on 28.10.2009 itself. Therefore it is said that the complainant was unable to file the complaint in time and delay caused in getting endorsement from the Post Office is to be condoned.

6. Since there was delay in filing the complaint, the accused was notified.

7. Accused appeared before the trial Court represented by his advocate and filed his objection to I.A.No.1, contending that the provision quoted in the application as one under Section 141 of the Act, is not applicable to the prayer made in the application. It is contended that the reasons assigned by the complainant to seek condonation of delay is not sufficient. The contention of the complainant that he had not received the postal acknowledgment and therefore he was not knowing about service of notice on the accused and also that he came to know regarding service of notice on the accused on 04.01.2010, when the postal authorities issued the endorsement to that effect, are all denied. It is stated that even though the legal notice was issued on 27.10.2009, the complaint was lodged with the postal authorities only on 09.12.2009 and even after receipt of the endorsement by the postal authorities, the complaint was not filed before t