IMPORTANT POINT
Accused has right to be heard on application moved by complainant for condonation of delay in filing complaint under Section 138 of Negotiable Instruments Act in terms of proviso to Section 142(b) of the Act even when cognizance of complaint was not taken.

M. Jayapaul, J.—The petitioners are the accused in C.C. Nos. 2155 of 2005 and 2154 of 2005 respectively on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai-15, launched by the complainant for an offence under Section 138 of the Negotiable Instruments Act.

2. The complainant filed the complaint with a delay of 28 days in preferring the complaint. As the proviso under Section 142(b) of the Negotiable Instruments Act contemplates taking cognizance of the complaint by the Court, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the period of limitation as contemplated under Section 142(b) of the Negotiable Instruments Act. The applications seeking condonation of delay were filed and the same were allowed by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai.

3. The entire challenge in these criminal original petitions is directed against the entertaining of the applications seeking condonation of delay without an affidavit of the party and allowing the applications without affording an opportunity to the accused to contest the said applications.

4. Learned counsel appearing for the petitioners/accused would submit that the valuable right contemplated under Sections, 138 and 142(b) of the Negotiable Instrument Act, has been completely thwarted by the course adopted by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, in entertaining the applications without an affidavit and also allowing the applications without affording an opportunity to the accused.

5. Learned counsel appearing for the respondent would submit that only in a case where a petition under Section 5 of the Limitation Act is filed, an affidavit will have to be annexed therewith and an opportunity will have to be given to the other side to contest the petition. Where the accused has not been served with summons for taking the case on file, he cannot be heard to say anything in the original proceedings initiated by the complainant.

6. In the Statement of Objects and Reasons of the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, it has been stated that proviso to Section 142(b) is added to provide discretion to the Court to waive the period of one month which has been prescribed for taking cognizance of the case under the Act.

7. Section 142 of the Negotiable Instruments Act reads as follows:

“Section 142, Cognizance of offences—Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974)—

(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the

proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

8. It is found that the sum and substance of the proviso found under Section 142 of the Negotiable Instruments Act is quite akin to the discretion conferred on the Courts to condone the delay under Section 5 of the Limitation Act in preferring the appeals and applications.

9. There is no dispute to the fact that the discretion has been conferred on the Court under Section 142 of the Negotiable Instruments Act in the very same line of Section 5 of the Limitation Act. In both the above said provisions of law the complainant has to satisfy the Court that he had sufficient cause for not approaching the Court within the period prescribed under law.

10. The period of limitation has been prescribed under Section 468 of the Cr.PC to take co