IMPORTANT POINT
Section 5 of Limitation Act is not applicable to condone delay in filing complaint u/ s 138 of Negotiable Instruments Act.

M.P. Chinnappa, J - The only argument advanced in this petition is that Section 5 of the. Limitation Act is not applicable to condone the delay in presenting the complaint beyond the period of one month prescribed under Sec. 142(b) of the Negotiable Instruments Act (for short 'the Act').

2. The brief facts of the case are: Respondent filed a complaint under Sec. 200 Cr. P.C. against the petitioners for the alleged offence under Sec. 138 of the Act. He has also filed an application under Sec. 5 of the Limitation Act to condone the delay in presenting the complaint beyond the prescribed period. The learned Magistrate has taken cognizance of the offence, recorded the sworn statement and thereafter, directed to issue process. Subsequently, the Magistrate considered the I.A. without giving an opportunity to the accused persons and condoned the delay in presenting the complaint. This order is questioned by the accused in this petition.

3. Heard the counsel on both sides.

4. As stated earlier, the only question that arises for consideration is as to whether Sec. 5 of the Limitation Act is applicable to condone the delay in presenting the complaint?

5. The learned counsel for the petitioner has strenuously contended that Section 5 is applicable only in regard to an appeal and application. A complaint cannot be construed as an application as provided under Sec. 5 of the Limitation Act. Therefore, the Magistrate has committed an error in condoning the delay.

6. In view of this submission, it is now necessary to refer to Section 5 of the Limitation Act which reads:

"Any appeal or any application other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

So, as rightly pointed out by the learned counsel for the petitioner, Section 5 refers only to any appeal or any application. It does not refer to any suit or complaint. On the basis of it, he submitted that the complaint is an original proceeding and therefore, Section 5 is not applicable and the question of condoning the delay does not arise.

7. This question was considered by the Hon'ble High Court of Kerala in a decision reported in Kunhimohammed v. Khadeeja1, wherein it is held that a complaint under Sec. 138 of the Act made beyond 1 month of date on which cause of action has arisen is barred and Magistrate has no jurisdiction to take cognizance by condoning the delay either under Sec. 473 Cr. P.C. or under Section 5 of the Limitation Act. The High Court has considered the meaning of the application or petition' in respect of its benefit under Sec. 5 of the Limitation Act which can be claimed in appropriate cases. In that connection, the Sections 96, 167(6), 218, 223, 243(2), 244(2), 254(2), 291(2), 296(2), 306(3), 335(3), 339, 397(3), 402(1), (2), (3) & (4), 406, 415,382 and 415(3) of the Cr. P.C. wherever the word 'application' or 'petition' appeared were considered to find out the correct object and purpose of using the words 'application' in the respective sections were discussed by the Court. It also refers to Sections 98, 195, 198, 199 of Cr. P.C. wherever the word 'complaint' is used. Having considered, an these sections, it is held, that the above provisions are not exhaustive. Generally every motion before a Criminal Court has to be in the form of a complaint, application or petition. It seems to be clear that the words application, complaint and petition are neither interchangeable nor have the same meaning or import. A complaint under Section 142 of the Act is not the same as an application. It is n