Proper procedure for condoning delay and taking cognizance of a complaint under Section 138 of the Negotiable Instruments Act.

1. The above Criminal Original Petition has been filed by the petitioner to call for the records comprised in C.C. No.1295 of 2006 on the file of the Judicial Magistrate No.1, Erode and to quash the same.

2. Though the respondent, had been served and his name shown in the cause title, he is neither appearing in person nor through counsel and hence in his absence the Petition is being taken up for final disposal.

3. The brief facts that are necessary for the disposal of the above Criminal Original Petition are set-out here-under:

Since the cheque issued by the petitioner to the respondent herein was returned/unpaid the respondent issued a statutory notice on 7. 2006, which was served on the petitioner on 17. 2006. The lest date for filing a Complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") was 28. 2006, but admittedly the Complaint came to be filed only on 9. 2006 i.e., after the delay of 10 days. But the complaint was not accompanied with any Petition to condone the said delay of 10 days, but yet the learned Magistrate had taken cognizance of the case as

C.C. No.1295 of 2006 and had ordered issue of process to the accused/petitioner herein. Contending that the said cognizance taken by the Learned Magistrate in the absence of a Petition to condone the delay and without passing any specific order condoning the delay is bad in law, the above Petition has been filed to quash the proceedings in C.C. No.1295 of 2006.

4. Heard Mr. V. Ayyadurai learned counsel for the petitioner.

5. Learned counsel for the petitioner submitted that since the Complaint been filed after a delay of 10 days, the complainant should have filed a Petition supported by an affidavit to condone the delay; on such Petition being filed, the learned Magistrate should have issued notice to the accused/petitioner and only after giving an opportunity of hearing to the petitioner and only after condoning the delay, the Complainant should have been taken on file; since the said procedure has not been followed, the cognizance taken by the learned Magistrate is liable to be quashed. He further submitted that after quashing the proceedings no liberty could be given to the respondent to file a Petition to condone the delay as it will amount to permitting the complainant/respondent to file a Complaint on a second cause of action. Complainant/respondent to file a Complaint on a second cause of action. In support of his above said contentions, the learned counsel for the petitioner relied upon a decision of the learned Single Judge of this Court reported in Dr. S. Magalingam vs. A. Ganesan, 2006 (2) CTC 307.

6. I have carefully considered the above submissions made by the learned counsel for the petitioner. In the decision reported in Dr. S. Magalingam vs. A. Ganesan, 2006 (2) CTC 307, the correctness of entertaining a Special Leave Petition in an Appeal filed against the acquittal after the expiry of the period of limitation without a Petition seeking condonation of delay was considered. It has been held in the said decision that the order passed in the Special Leave Petition without condoning the delay in preferring such Application and the order admitting the Appeal is liable to be recalled. The learned Judge has also observed that the respondent (complainant), in the Complaint filed for an offence under Section 138 of the Negotiable Instruments Act, will have to be given an opportunity to try a chance by filing an Application under Section 5 of the Limitation Act for condoning the delay in preferring the Special Leave Petition.

7. It is no doubt true that in this case the Complaint has been filed after a delay of 10 days and cognizance had been taken and process ordered to be issued when admittedly the Complaint had not filed a Petition to condone the delay and without the Court condoning the delay. If there is any delay in filing a Complaint, the complainant should file an Application the learned Magistr