M.N. Bhandari, J.

By this criminal misc. petition, a challenge is made to the proceedings in Criminal Complaint No.78/2007 pending before the Judicial Magistrate, Rajakhera. It is on a complaint under section 138 of the Negotiable Instruments Act, 1881.

2. Learned counsel for petition submits that process under section 204 CrPC has been issued vide the impugned order. It is in ignorance of the fact that the complaint was not filed within limitation.

3. The non-petitioner filed complaint showing it to be within limitation. The learned court below issued the process, ignoring the issue of limitation.

4. Referring to the facts of this case, he submits that the complaint under section 138 of the Act was filed on 31.1.2007. Prior to it, the information of dis-honour of cheque was received by the complainant on 29.11.2006. A notice under section 138 of the Act of 1881 was given on 5.12.2006. It was received by the complainant on 12.12.2006. The facts aforesaid were sufficient to determine the limitation, however, the court below failed to consider the issue of limitation. The prayer is accordingly made to quash the complaint so as the order passed for issuance of process.

5. Learned counsel for non-petitioner complainant submits that the delay, if any, is only of two days. The liberty be given to the non-petitioner to file an application under section 142 of the Act of 1881 for condonation of delay. Reference of the judgment of the Hon'ble Apex Court in the case of "Pawan Kumar Ralli v. Maninder Singh Narula", 2014 (7) Supreme 122 has been given. Therein, similar controversy came up for consideration and the complainant was permitted to make an application for condonation of delay. This petition may be disposed of with liberty to the non-petitioner to file an application for condonation of delay.

6. I have considered rival submissions of the parties and perused the record.

7. After filing of the complaint, process was issued vide the order dated 16.4.2007, after referring the complaint to be within limitation. The court below failed consider that the complaint was filed beyond limitation. The delay may be of two days. In absence of an application for condonation of delay, it could not have been ignored by the court below. An observation that the complaint is within limitation in reference to the statement of the complainant, shows casual approach of the court below. In view of the delay in filing of complaint, the process could have been issued, rather, the complaint itself was not maintainable.

8. Reference of the judgment in the case of Pawan Kumar Ralli has been given, wherein, Hon'ble Supreme Court permitted the complainant to make an application for condonation of delay. If the facts of that case are looked into, permission was given in the peculiar circumstances and not in general. The circumstances therein have been explained in para 21 and 22 of the said judgment. For ready reference, paras 21 and 22 are quoted hereunder -

"21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all.

22. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the Appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for