ORDER :

This revision petition is filed by the petitioner/complainant as against the order passed by the learned District and Sessions Judge, Gadag (hereinafter referred to as the ‘Revisional Court’, for brevity) in Criminal Revision Petition No.47/2010 dated 16.12.2011 dismissing the compliant by setting aside the order passed by the learned I Additional Civil Judge (Junior Division) and JMFC-I, Gadag, in P.C.97/2010 dated 26.06.2010.

2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

3. The rank of the parties before the trial Court is retained for convenience.

4. The case of the complainant before the trial Court is that, he filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’ for brevity) against the accused for the offence under Sections 138 and 142 of the Negotiable Instruments Act, 1885 (hereinafter referred to as the ‘NI Act’, for brevity) alleging that the complainant gave hand loan of Rs.1,50,000/-to the accused and in discharge of the loan, the accused gave a cheque bearing No.1002466 to the complainant. When the complainant presented the said cheque for clearance, it was returned to the complainant on 06.12.2006 with an endorsement ‘payment stopped by the drawer’. A legal notice was issued to the accused on 27.12.2006 giving fifteen days time to the accused to make the repayment. The accused gave an evasive reply and therefore, a complaint came to be filed before the Court on 11.07.2007. The complainant also filed an I.A. under Section 142(b) of the NI Act for condoning the delay of 152 days in filing the complaint. The trial Court by order dated 09.04.2010 issued notice to the accused on I.A. for condoning the delay. On 27.05.2010 the Court summoned the accused. One RSB for LMA filed vakalat and sought some time for filing objections to I.A. and the matter was adjourned to 26.06.2010. On 26.06.2010 LMA prayed time again and the case was adjourned to 08.07.2010. In the meanwhile, the respondent/accused preferred a revision petition before the Revisional Court in Crl.Rev.Petition No.47/2010 challenging the order dated 26.06.2010. The respondent/accused challenged registering of the private complaint No.97/2010 and taken a contention that there is delay of five months in filing the complaint as per Section 138 of NI Act and the complaint ought to have been filed within one month from the date of cause of action arouse.

5. Considering the arguments addressed by the learned counsel for the accused, the Revisional Court allowed the revision petition and set aside the issuance of summons to the accused and dismissed the complaint. The same is challenged before this Court by the complainant.

6. Learned counsel for the petitioner/complainant strenuously contended that the order passed by the Revisional Court is erroneous and illegal. The Revisional Court not considered the order dated 26.06.2010 where the trial Court granted time to accused for filing objections. In fact there is no order passed against the accused. It is an order only to file objections by the accused for considering the delay of 152 days in filing the complaint. Therefore, the Revisional Court ought not to have dismissed the complaint rather it could have remanded back the matter to the trial Court for considering the delay application. The complaint cannot be dismissed by the Revisional Court when the trial Court not taken any cognizance on the complaint which is a preliminary stage and even it is premature to interfere by the Revisional Court. Hence, prayed for setting aside the order passed by the Revisional Court and to remand back the matter to the trial Court to proceed in accordance with law.

7. Per contra, learned counsel for the respondent supported the order passed by the Revisional Court and contended that the trial Court ought not to have issued notice to the accused before taking cognizance and the trial Court ought not