The court's decision was influenced by the legal provisions of Section 138 and Section 142(2) of the Negotiable Instruments Act, as well as the interpretation of the legal position based on the decision of the Hon'ble Apex Court in the case of Yogendra Pratap Singh v. Savitri Pandey & Anr.

1. - Heard learned counsel for the parties.

2. The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 11.2.2013 passed by the learned Additional Chief Judicial Magistrate (Communal Riots), Pali in Criminal Complaint Case No.51/2010, whereby the application filed by the accused under Section 203 Cr.P.C. was rejected and the order taking cognizance dated 16.2.2010 was upheld.

3. Learned counsel for the petitioners places reliance on the decision rendered by the Hon'ble Apex Court in the case of Yogendra Pratap Singh v. Savitri Pandey & Anr. (Criminal Appeal No. 605/2012 Arising out of SLP (Crl.) No. 5761/2010) wherein the Hon'ble Apex Court has referred the issue of maintainability of a pre-mature complaint under Section 138 of the Negotiable Instruments Act to a larger Bench whilst expressing that the judgment rendered by the earlier Bench of the Hon'ble Apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani & Anr., reported in (2000) 7 SCC 183 does not correctly state the legal position.

4. Learned counsel for the respondent no.2 submits that the petition filed by the petitioners may be accepted looking to the view expressed by the Hon'ble Apex Court in the case of Yogendra Pratap Singh (supra) while giving liberty to the complainant to file a fresh complaint. He submits that in view of the Section 142(b) of the Negotiable Instruments Act, the delay occasioned in filing the complaint can be condoned by the trial court. Thus, he prays that while allowing the petition, the complainant be given a liberty to file a fresh complaint in the trial court with a prayer to condone the delay occasioned in filing the complaint.

5. It is not in dispute in the present case that the complaint which was filed by the complainant was pre-mature.

6. Accordingly, the instant misc. petition is allowed and the order dated 16.2.2010 passed by the learned Additional Chief Judicial Magistrate (Communal Riots), Pali is quashed. At the same time, liberty is given to the complainant to file a fresh complaint supported by an application under Section 142(2) of the Negotiable Instruments Act seeking condonation. In the event, fresh complaint along with application for condonation of delay is filed, the Court concerned shall consider and decide the same in accordance with law.Stay petition also stands disposed of.Petition Allowed.

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