The short but interesting question that has cropped up in this petition is whether the trial court can condone the delay in filing a complaint under Section 142 of the Negotiable Instruments Act (for short Act) on the basis of an affidavit filed by the counsel for the complainant.

2. Relevant facts may be briefly noticed.

3. The petitioner is being prosecuted for an offence punishable under Section 138 of the Act. Respondent No.1 had filed the above complaint along with an application under Section 5 of the Limitation Act to condone the delay of two days in filing the complaint. The application was supported by an affidavit of the counsel for the complainant. When the application came up for consideration, the petitioner contended that the delay was not liable to be condoned, since the application was not supported by the affidavit of the complainant himself. He pointed out that the proviso to clause (b) of Section 142 of the Act being unambiguous, the affidavit in support of the application for condonation of delay ought to have been filed by the complainant himself. However, the said contention was repelled by the learned Magistrate and the delay was condoned. The above order passed by the learned Magistrate is under challenge in this petition filed under Sections 397 and 401 of the Code of Criminal Procedure.

4. The Negotiable Instruments Act 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Law (Amendment) Act 1988 by which Chapter XVII was incorporated in the existing Act. Under Section 138 of the amended Act, dishonour of cheque, for reasons stated in the said provision, was made a penal offence. Under section 142 it was postulated that 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, if the said complaint was not filed within one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138.

5. A new proviso to Section 142 of the Act was incorporated by the Amending Act 55 of 2002 with effect from February 6, 2003 enabling the court of competent jurisdiction to entertain a complaint which was filed after expiry of one month from the date on which the cause of action had arisen under clause (c) of the proviso to Section 138 of the Act. The relevant clause and the proviso are extracted hereunder:

“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.”(emphasis supplied).

A perusal of the newly added proviso shows that the complainant has to satisfy the court that he had sufficient cause for not filing the complaint within the statutory period of one month.

6. It is contended by the petitioner that the complainant not having affirmed the contents of the affidavit stating the reasons for the delay, nor he having signed the application for condonation of delay, the court was not justified in accepting the affidavit of the counsel.

7. It is contended by learned counsel for the petitioner that dishonour of cheque having been made a penal offence, the provisions contained under the amended Act have to be strictly construed. Prior to the amendment of 2002, the complainant would have lost his right to prosecute the drawer of the cheque, if he failed to file the complaint within one month from the date of a