IMPORTANT POINT
Where the condonation of delay in filing of the complaint has not been done in terms of Section 142(b) of the NI Act, taking cognizance of offence under Section 138 would be without the sanction of law.

R. Regupathi, J.—The petitioner is an accused for an offence punishable under Section 138 of Negotiable Instruments Act. A complaint has been filed on 16.2.2006 and as there was a delay of 620 days in preferring the complaint, by invoking Section 5 of Limitation Act, a petition to condone the delay has also been filed therewith, wherein, it has been stated that though originally the complaint was filed as early as on 7.6.2004, the same was returned for want of certain corrections and on being taken back, it was misplaced in the office due to mix-up with other paper therefore, the delay has occurred.

2. By order dated 16.2.2006, the learned Magistrate has directly taken the complaint on file, recorded the sworn statement and issued process to the accused. Questioning the correctness of the procedure adopted by the learned Magistrate in taking the complaint on file, the present petition has been filed.

3. The learned counsel for the petitioner submits that though it is stated in the petition that the complaint was presented before the learned Magistrate on 7.6.2004, there is no endorsement of the learned Magistrate for returning the complaint. When there is a specific provision under the Special Enactment itself viz., Negotiable Instruments Act to condone the delay in preferring a complaint, strangely, petition under Section 5 of the Limitation Act was filed. Moreover, the reasons stated in the present petition for condoning the delay in representing the complaint are not true as there is no material at all to substantiate that the complaint had been filed on the earlier occasion i.e. on 7.6.04. The learned Magistrate has, without even passing orders on the petition for condoning the delay in representing the complaint, directly taken the complaint on file on the date of filing itself and further proceeded with the matter. Such exercise on the part of the learned Magistrate is illegal and improper.

4. Per contra, the learned Counsel for the respondent/complainant by stating that on 7.6.2004 itself the complaint was filed; that the same was returned by the learned Magistrate to carry out some correction; and that since it was misplaced along with other bundles by the counsel, there was a delay in representation, whereupon, the petition to condone delay has been, would submit that great hardship would be caused if the petition is ordered, quashing proceedings.

5. I have perused the materials available on record and heard the submissions made on either side. It appears that a cheque bearing No.071679 dated 1.4.2004 was dishonoured on 2.4.2004, resulting in issuance of legal notice dated 20.4.2004. Subsequently, a complaint has been preferred for the offence punishable under Section 138 of Instruments Act. On a careful perusal of the complaint, I find that the date of filing of the complaint has been stated and the Court seal reflects the date as 16.2.2006. Thus, there is no proof at all for filing the complaint on 7.6.2004. An endorsement by the learned Magistrate is not available to substantiate the complaint filed on the earlier occasion was in fact returned for want of some corrections.

6. It appears that actually, the complaint has been filed directly on 16.2.2006 and a petition to condone the delay in representing the complaint has been filed under Section 5 of the Limitation Act.

7. Negotiable Instruments Act is a Special Enactment and for condoning the delay in representing the complaint, the provision available is Section 142(b) thereof, which reads as follows:

“142. Cognizance of offences:

(a) …….

(b) such complaint made within one month of the date on which 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 satisfied the Court that he has sufficient cause for not making a complaint within such period.”

8. Admittedly, a petition has not been filed under the aforesaid prov