Important points:
Condonation of delay in filing the complaint is within the discretion of the Magistrate. But, discretion shall be exercised in a sound and sober manner. The liberal principles, which guide the exercise of discretion in allowing applications for condonation of delay, need no reiteration here. The expression "sufficient cause for not making a complaint” in the proviso to Section 142(1)(b) of the Act shall be understood and applied in a practical, pragmatic and reasonable manner. In the absence of any deliberate inaction or negligence on the part of the complainant, the words "sufficient cause" shall be construed in a liberal manner, so as to advance substantial justice. Rules of limitation are not meant to destroy the right of the parties but only to ensure that they do not resort to dilatory tactics.

ORDER :

1. The petitioner is the complainant in a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

2. The petitioner filed a complaint as C.M.P No. 3047/2018 against the second respondent for an offence punishable under Section 138 of the Act. There was a delay of 33 days in filing the aforesaid complaint. The petitioner had filed application as C.M.P No. 3062/2018 for condoning the delay in filing the complaint.

3. As per Annexure-A6 order, the learned Magistrate dismissed the application for condonation of delay in filing the complaint. Annexure-A6 order reads as follows:

“Complainant present. Cheque is dated 26.04.2018.

It was returned dishonoured on 27.04.2018 and communicated by complainant's Bankers on 30.04.2018. Statutory notice was issued on 10.05.2018. Intimation regarding service of notice was given to the complainant by the postal authority on 26.06.2018. Complaint was to be filed on or before 29.06.2018. But it was filed only on 01.08.2018 and the reason shown is delay in receipt of A/D card regarding which intimation was already received on 26.06.2018. 33 days delay definitely was not caused due to the delay in receipt of the said intimation and hence the reason for delay shown is hardly convincing. Hence the petition is dismissed.”

4. Since the application for condonation of delay in filing the complaint was dismissed, as per Annexure-A7 order, the learned Magistrate also dismissed the complaint.

5. This petition is filed under Section 482 Cr.P.C by the complainant challenging the legality and propriety of Annexure-A6 order passed by the learned Magistrate.

6. Heard the learned counsel for the petitioner. Inspite of service of notice, the second respondent has not appeared.

7. Learned counsel for the petitioner submitted that, the petitioner had sent the statutory notice to the accused, as provided under clause (b) of the proviso to Section 138 of the Act. Learned counsel would contend that the complainant came to know about the service of notice on the accused only when he received the intimation from the postal department in that regard. Learned counsel would contend that there was no undue delay in filing the complaint after the complainant received intimation from the postal department regarding the date of service of notice on the accused and the order passed by the learned Magistrate dismissing the application for condonation of the delay in filing the complaint cannot be sustained in law.

8. The cheque is dated 26.04.2018. The complainant got intimation from the bank on 30.04.2018 regarding the dishonour of the cheque. On 10.05.2018, the complainant sent notice to the accused by registered post, demanding payment of the amount of the cheque. The complainant did not get back the acknowledgment card regarding receipt of notice by the accused. He made application to the postal department on 08.06.2018 for obtaining information regarding the service of notice on the accused. On 26.06.2018, the complainant obtained information from the postal department that the notice was served on the accused on 15.05.2018. The complaint was filed on 01.08.2018.

9. Section 142(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 of the Act, except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Cause of action for filing the complaint arises under clause (c) of the proviso to Section 138 of the Act, when the drawer of the cheque fails to make the payment of the amount of the cheque to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice issued under clause (b) of the proviso to Section 138 of the Act. Theref