The main legal point established is that the delay in filing a complaint under S.138 of the Negotiable Instruments Act cannot be extended or condoned under S.473 Cr.P.C. or S.5 of the Limitation Act, and a complaint is distinct from an application or a petition.

The order on C.M.P. No. 4432 of 1993 of the Judicial First Class Magistrate, Kozhikode filed under S.473 Cr.P.C. is under challenge in this revision. By the said petition the petitioner sought to condone the delay of 15 days to file the complaint against the respondent for an offence punishable under S.138 of the Negotiable Instruments Act, for short the Act. It was submitted that he was hospitalised at the relevant time and could not file the complaint within the period prescribed. He produced a certificate from the doctor who treated him and prayed that the delay may be condoned. The Court below by the impugned order refused to condone the delay and dismissed the petition.

2. Heard counsel for the petitioner.

3. Under S.142 of the Act: "Notwithstanding anything contained in the Code of Criminal Procedure,

a) no court shall take cognizance of any offence punishable under S.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 S.138;

c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under S.138".

There was no limitation for initiating criminal proceedings before trial courts under the Code of 1898. But a period was prescribed under S.417(4) of that Code in regard to appeal against acquittal. Provisions as to limitation for taking cognizance of offences have now been provided for the first time in Chapter XXXVI of the Code. But in view of the non-obstante clause in S.142 of the Act, provisions in Chapter XXXVI, and particularly S.473 would not apply to a complaint under the Act, which, however in terms has not excluded the applicability of the provisions of Limitation Act, wherein S.29(2) (which alone is relevant for the purpose of this case) it is provided that:

"Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule

i) S.3 shall apply, as if such period was the period prescribed by the Schedule.

ii) S.4 to 24 shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. But this will only be to the extent to which they are not expressly excluded by such special or local laws".

4. It was held in Mangu Ram v. Delhi Administration ((1976) 1 SCC 392) while dealing with the question whether S.5 of the Limitation Act applied to an application for special leave made under S.417(4) Cr.P.C. 1989, which corresponds to S.378 of the new Code, that:

"There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in S.29, sub-section (2) is concerned. Whereas, under the Indian Limitation Act, 1908, S.29, sub-section (2), Cl.(b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in Ss.4,9 to 18 and 22, shall not apply and, therefore, the applicability of S.5 was in clear and specific terms excluded, S.29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in S.4 to 24, which would include S.5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. S.29, sub-section (2) cl.(b) of the Indian Limitation Act, 1908 specifically excluded the applicability of S.5, while S.29, sub-section (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of S.5 and the ratio of the decision in Kaushalya Rani's case (supra) can, t