IMPORTANT POINT
When a specific proviso is provided under Section 142(b) of the Negotiable Instruments Act to condone the delay, the said delay could be condoned in the interest of justice having regard to the nature of transaction and the amount involved and also having regard to the difficulties expressed.

H.V.G. Ramesh, J.—These appeals have been taken up together for disposal since they are arising out of common judgment passed by the XXII Additional. C.M.M. and XXIV Additional Small Causes Judge, Bangalore city in C.C. Nos. 18426/03 to 18429/03 by order dated 21.12.2005.

2. The appellant had filed four separate cases against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act for the dishonour of cheques issued by the respondent drawn on Canara Bank, Mahalakshmi Layout Branch, Bangalore. According to the complainant, he issued a legal notice dated 12.8.2003 by RPAD as well as under Certificate of Posting on 13.8.2003 and despite service there is non-compliance by the respondent to pay the amount, as such, the complaint came to be filed. Along with the complaint, an application under Section 5 of the Indian Limitation Act r/w Section 142(b) of the N.I. Act was also filed for condonation of delay of 13 days in filing the complaint. The learned Magistrate, after enquiry has taken up the matter for final disposal and while answering the first issue as to whether the complaint/petition is barred by time, holding that petition is time barred, dismissed the complaint. Hence, these four appeals.

3. Heard the learned counsel for the appellant and the learned counsel representing the respondent.

4. It is the submission of the learned counsel for the appellant that these complaints have been filed subsequent to the amendment to Section 142 of N.I. Act. The said proviso provides for, if the complainant satisfies the Court that he had a sufficient cause for not filing the complaint within the specified period the cognizance of the complaint may be taken. Further he relied upon the judgment of the Orissa High Court rendered in Criminal Misc. No. 673/1992 and submitted that in the absence of any specific provision barring the application filed under Section 5 of the Limitation Act, the application is maintainable. It is also further contended that nothing has been brought out on record by way of cross-examination when the complainant had been examined regarding the delay. The learned Magistrate ought to have taken into consideration the grounds raised by the complainant regarding the sickness of his mother and other difficulties and without considering the same and without even considering the matter on merits, has dismissed the application as well as the main matter, which is erroneous. It is further submitted that although there is an endorsement of the postal authorities regarding the service of notice and although there is a delay of only three days, on safer side the contention was taken that there is a 13 days delay and sought for condoning the same. The learned Magistrate without assigning valid reasons has rejected the said application as well as the affidavit filed by him despite the fact that there is no proper objection by the respondent. Accordingly, sought for to allow the appeal.

5. Per contra, the learned counsel appearing for the respondent accused has submitted that it is the specific case of the complainant that there is a delay of 13 days and subsequently he has taken another defence that there is a delay of only 13 days and to cover up the said delay he has taken the shelter of the General Clauses Act. The learned Magistrate taking note of the fact that there is a delay has rightly rejected the complaint. It is further contended that even when the accused has approached this Court, this Court in the criminal petition Nos. 654/05 to 657/05 observing that these matters cannot be decided by looking to the documents in a petition under Section 482 of Cr.P.C. has directed the respondent herein to approach the trial Court, as such, the application was taken belatedly along with the main matter, Hence, there is no illegality in dismissing the petitions based on limitation. In support of his argument, he relied upon the decision reported in the case of A. Bhoosanrao v. Purus