IMPORTANT POINT
It is also difficult to exercise judicial discretion in a strait jacket formula, while considering the provisions of proviso to Section 142(b). A provision should be liberally construed so as to give substantial justice to the approaching party.

P.D. Rajan, J.—This revision petition is preferred against the order in C.M.P.No.5683/2007 on the file of Judicial First Class Magistrate-III, Thrissur, which was filed u/s.142 of the Negotiable Instrument Act to condone the delay of 48 days in filing a complaint u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). Complainant’s case is that the accused borrowed a sum of 1,50,000/- from him and in discharge of that debt, accused issued a cheque drawn on South Indian Bank, Ollukkara branch. When it was presented for encashment, it was dishonoured for the reason of ‘account closed’. The complainant demanded the amount by giving a notice in writing to the accused, but even after acceptance of notice, he failed to pay the due amount. In the circumstances, he filed a complaint, C.M.P.No.5684/2007 in the trial Court, with a petition to condone the delay of 48 days, which was dismissed by the learned Magistrate on 25.2.2008. Being aggrieved by that, he approached this Court with this revision petition.

2. The learned counsel appearing for the revision petitioner submitted that as the petitioner was laid up due to Chikkun Guniya, he had sufficient cause for not appearing in the trial Court for filing a complaint in time. For ascertaining the satisfaction of the Court, it is necessary to conduct an enquiry, but without any enquiry, the trial Court dismissed the petition, which is illegal, which resulted in miscarriage of justice. Hence, he prays to exercise the revisional jurisdiction to rectify the error.

3. I heard the learned Public Prosecutor. Notice issued to the 1st respondent was returned as unclaimed and there is no appearance for the 1st respondent.

4. The manner in which a complaint for dishonour of cheque has to be filed is explained under S.142 of the N.I. Act. The Section starts with a non-obstante clause which states that the provision mentioned in the Section will be in supersession of the provision of the Code of Criminal Procedure for filing complaints. Section 142 of the N.I. Act reads as follows:

“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.”

5. A plain reading of the Section says, if a payee of the cheque or the holder in due course of the cheque files a complaint in writing for taking cognizance of an offence punishable under Section 138 of the N.I. Act, such a written complaint can be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the N.I. Act. The proviso to S.142 stipulates that the cognizance of a complaint can be taken by a Court after the prescribed period of 30 days, if the complainant satisfies the Court that he had sufficient cause which resulted in delay of making a complaint within the period. A metropolitan Magistrate or judicial Magistrate of the Ist Class having territorial jurisdiction can try a complaint. Normally, the Court having jurisdiction shall take cognizance of the offence on a complaint within one month from the date on which cause of action arises under Clause (c) of the proviso to Section 138 of the N.I. Act. The use of ‘shall’ in clause (a) ensure a mandatory direction to ensure the legal ingredients provid