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2006 Supreme(Bom) 453
IN THE HIGH COURT OF JUDICATURE AT BOMBA Y
R. S. MOHITE, J.
Nikumbh Dairy Products Ltd. - Appellant
Versus.
State of Maharashtra - Respondent
Criminal Application No.774 of 2006
Decided on : 23rd March, 2006.
V. V. PAl i/b. Mayur & Jariwala, for Applicant.
BINA H. JARIWALA, for Respondent No.2.
P. S. HINGORANI A.P.P., for State.
Headnote:Criminal Procedure Code, 1973 - Sections 200 and 482 - Negotiable Instruments Act, 1881, Sections 138 and 142 - Quashing of order dismissing revision petition - Offence of dishonour of cheque - Complaint filed under Section 138 of N.I. Act - Application for condona- tion of delay - Allowed by Magistrate - Application whether filed alongwith complaint or not - To be decided by Court alongwith other issues at find stage. - In the case of Sou. Surekha S. Hajare v. Instacomp., reported in 2004 All MR (Cri) 373, the Court has held that the application for condonation of delay, can either be filed with the complaint or can also be moved at any later stage. In Court’s view, after process has already been issued if such an application had been made by the complainant, the Court ought to have decided the said application alongwith all other issues at the stage of disposal of the trial.
Be that as it may, having held that there is no intermediatary stage in the trial for deciding any preliminary issue, Court must set aside both the impugned judgment and orders which Court accordingly does. Having set aside the impugned judgments and orders. Court directs that the application filed by the respondent No. 2 for condonation of delay and the contentions made in the said application as well as the contentions in this regard which may be made by the accused will be considered by the trial Court while deciding the case at the final stage of the trial and will be dealt with in his judgment. The decision will be taken in accordance with law which w ill prevail at that stage.
Heard both sides.
2. Rule. By consent, rule made returnable forthwith.
3. By this application, the applicant impugns an order passed by the Metropolitan Magistrate 23rd Court at Esplanade, Mumbai in C.C.No.550/S/2002 condoning delay in filing of the complaint. The application further seeks to quash and set aside an order dated 14.2.2006 passed by the Sessions Court in Criminal Revision Application No. 123/2006 whereby the said revision has been dismissed by the Additional Sessions Judge.
4. The brief facts of the case are as under:
The complainant had filed a criminal complaint against the present applicant and other accused alleging offence under section 138 of the Negotiable Instruments Act. The process was issued on 23.7.1997. In 2005, the present applicant and one of the other accused had filed Criminal Application No.899 of 2005 for quashing of complaint and the order issuing process. The ground taken in the said application was that the complaint has been filed beyond the period of limitation permitted by Negotiable Instruments Act. I am informed that the said complaint was withdrawn on 10.2.2005. On 29.11.2005, the respondent No.2 filed an application for condonation of delay. The Metropolitan Magistrate vide impugned order dated 20.1.2006 allowed the application for condonation of delay. This order has been confirmed by the revisional court by order dated 14.2.2006 whereby the revision filed by the present applicant has been rejected.
5. In the aforesaid facts, it is clear that the application for condonation of delay was filed after eight years after issuance of the process and when cognizance of the complaint had already been taken. The fact that the cognizance was taken is evident from the fact that the process has been issued by the Magistrate in the year 1997. Section 142(a) read with subsection (b) bars the court from taking cognizance unless the complaint is made within one month from the date of which the cause of action has arisen under Clause (c) of section 138 of the Negotiable Instruments Act. Proviso to section 142(b), bars the Court from taking cognizance by way of an exception carved out, if the complainant satisfies the Court that he has sufficient cause for not making a complaint within such period.
6. Taking of cognizance of the case is the duty of the Court and before cognizance is taken, it is the responsibility of the Magistrate to satisfy himself that the complaint has been filed within the prescribed period of limitation. It is well settled that cognizance is taken when the Court applies its mind in order to find out if any offence is made out. This would also include a duty to determine if the complaint is filed within time. Cognizance must not be taken where there is a delay unless the delay is explained by sufficient and acceptable cause. In the present case, unfortunately the process has been issued notwithstanding the fact that there was some delay in filing of the complaint.
7. It appears that the present applicant and one other accused agitated this point by filing an application before the High Court and such application was filed in the year 2005 i.e. 8-years after the process was issued. This application was withdrawn. But, the net result of making such an application was that the complainant woke up to the fact that there was delay in the filing of his complaint and applied for condonation of delay.
8. In the case of Sou. Surekha S. Hajarc Vs. Instacomp, reported in 2004 ALL MR (Cri) 373, this Court has held that the application for condonation of delay, can either be filed with the complaint or can also be moved at any later stage. In my view, after process has already been issued if such an application had been made by the complainant, the Court ought to have decided the said application alongwith all other issues at the stage of disposal of the trial.
9. The trial under section 138 proceeds under Chapter XX of the Cri .P.C., the prescribed procedure does not permit the Magistrat
