JUDGMENT :

S.M. MODAK, J.

1. The Court of 11th Jt. Judicial Magistrate First Class, Pune acquitted the respondent for the offence punishable under Section 138 of Negotiable Instruments Act vide judgment dated 23rd March, 2006 in Case No. 298 of 2003. The complaint was not filed in time and hence respondent was acquitted. It is the complainant who has preferred this Appeal. The parties will be referred in their original status.

2. The complainant sent first notice on 31st March, 2006 to two accused. Accused No. 1 is a firm and accused No. 2 is partner. It was sent by R.P.A.D. Acknowledgment was not received. Hence complainant posted the notice dated 31st March, 2006 again to accused No. 1 and accused No. 2 on 16th April, 2006 and on 21st April, 2006 respectively. As there was failure to pay by both the accused, the complaint was filed on 5th June, 2003. The complaint was filed by considering cause of action arisen on the basis of notice posted on second occasion. Trial Court observed that there was delay of four days in filing the complaint (Page 7). Trial Court calculated the period from the notice posted on 31st March, 2003 by R.P.A.D. On this background, I have heard Mr. Mandar Limaye, learned Advocate for Appellant, Mr. Suryakant B. Chaudhari, learned Advocate for the Respondent Nos. 1 and 2 and Mr. H.J. Dedhia, learned APP for the State-Respondent No. 3.

3. So questions which crop up is as follows:

(a) When the complainant filed the complaint on the basis of notice posted on second occasion, whether it was proper for the trial court to dismiss the complaint as time barred?

(b) Whether trial Court ought to have given an opportunity to the complainant to explain delay occurred?

(c) What order?

4. According to Mr. Limaye:

(a) When the process was issued and when case has proceeded it was not proper for the trial Court to dismiss the complaint.

(b) It was obligatory on the trial Court either to condone delay on its own or ought to have given an opportunity to offer an explanation.

(c) To buttress his submission he relied upon the observation in the judgment of T.S. Muralidhar vs. H. Narayana Singh, 2010 CRLJ 3315 and K. Bhaskaran vs. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510.

5. Whereas Mr. Gholap for accused supported the order and submitted that there is no duty cast upon the trial Court to condone the delay particularly when the complainant has not prayed for condonation of delay. He explained to me the relevant dates from the complaint, evidence and as observed by the trial Court. He also filed on record summary of those dates.

6. The complainant examined himself and representative each from the bank of accused and the complainant. It is important to note that when complaint was filed, complainant pleaded:

“both the accused did not claim the notices and both the Registered A.D.’s were returned to my advocate with a remark as not claimed. Hence he reissued the notice to accused No. 1 and 2 on 16th April, 2003 and 21st April, 2003 through under posted certificate.”

When he gave evidence, he deposed as:

“......both the accused did not claim the notice and both the RPAD were returned to my advocate with remark as not claimed.”

7. On this evidence trial Court observed:

“The envelope which was sent to accused No. 1 is at Exh-38 and it is returned un-served with remark “intimation delivered.” On perusal of the said envelope, it reflects that, intimation was delivered to the accused on 14th April, 2003 and from 14th April, 2003 the accused could not have claimed the notice within 7 days. It means the said notice is not claimed on 21st April. 2003.”

In respect of service on accused No. 2 it is observed:

“The second envelope which was sent to accused no. 2 is at Exh-39, it is returned un-served with remark “intimation delivered on 7th April, 2003 and 8th April, 2003. It means the accused could have claimed the said envelop of the notice