JUDGMENT

Saumitra Dayal Singh, J.

Heard Shri Ashish Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.

2. Challenge has been raised to the order dated 13.12.2021 passed by the Civil Judge (Junior Division), Fast Track Court, Judicial Magistrate, Ghaziabad in Complaint Case No. 1690 of 2021 (Ashwani Bhatnagar v. Sunita Agarwal), filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). Undisputedly, the above criminal complaint was filed with delay. The cheque in question was dishonoured on 13.06.2018. It was returned with the dishonour memo on 28.06.2018. Legal notice was first issued to the Opposite party no. 2 on 26.07.2018 where after criminal complaint was lodged on 27.10.2018. As to the delay in lodging the complaint, the learned court below has condoned the delay and thereafter taken cognizance on the complaint and summoned the present applicant.

3. In such fact, a preliminary objection has been raised to the cognizance taken. According to the learned counsel for the applicant, notice ought to have been served on the applicant to allow him to object to the delay before the same may have condoned and cognizance taken. He has relied on three decisions. First, he has relied on a decision of the Tripura High Court in Sumit Deb v. Joy Deb and Anr. (CRL. A. No. 09 of 2020), decided on 30.05.2022. Further, reliance has been placed on a decision of the Supreme Court in State of Maharashtra v. Sharadchandra Vinayak Dongre and Ors. , (1995) 1 SCC 42 and a decision of the Andhra Pradesh High Court in D. Shyam Sunder v. Nella Prabhu Lingamurthy and Anr. , (2010) 1 ALD (Cri) 431 .

4. On the other hand, learned A.G.A. would submit, the learned court below was fully empowered to condone the delay. Insofar as the satisfaction to condone the delay was recorded in a separate order dated 16.9.2021, there is no defect in the decision. He has relied on the decision of the Supreme Court in Birendra Prasad Sah v. State of Bihar and Others , AIR 2019 SC 2496 and a decision of coordinate bench of this Court in Ranjeet Kumar Verma v. State of U.P. and another Application under Section 482 No. 30326 of 2022.

5. Having heard learned counsel for the parties and having perused the record, in the first place, as a fact it cannot be disputed that the complaint was lodged by the opposite party carrying a delay. Second,in view of the specific provision of Section 142 (1) (b) read with the proviso thereto, the learned court below was vested with the power to condone the delay in lodging such complaint.

6. As to the procedure to be followed for condoning the delay, the Act is silent. Thus, the Act does not prescribe, before condoning the delay the accused person must be put to notice and the objection to the condonation of delay sought must be considered before delay is condoned and the complaint registered.

7. Third, though section 142 of the Act and other attending provisions open with the non obstante clause, at the same time, there is nothing in the language of the Act as may suggest that it seeks to over-ride the provisions of the Cr.P.C. 1973 (hereinafter referred to as 'the Code') with respect to the procedure prescribed thereunder for the purpose of delay in entertaining and dealing with criminal" cases. Undisputedly, the prosecution lodged against the applicant is in conformance with the procedure prescribed under the Code to entertain a criminal complaint.

8. Then Section 473 of the Code reads as below:-

"473. Extension of period of limitation in certain cases. - Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence afte