The main legal point established in the judgment is that the matter of condonation of delay in filing a complaint relating to dishonour of a cheque lies exclusively between the complainant and the court, and the accused is not entitled to participate in the corresponding inquiry.

Judgment

This order shall govern disposal of both the petitions, under section 482 of the Code of Criminal Procedure (for short "the Code') as they raise a common question of law, formulated as under -

"Whether a Magistrate is required to afford opportunity of hearing to the accused before condoning delay in filing complaint relating to dishonour of cheque, under proviso to Clause (b) of section 1 42 of the Negotiable Instruments Act, 1881 (for brevity the 'Act')"

2. The petitioner is aggrieved by the following orders passed in each one of the cases, registered as Complaint Case Nos. 13364/10 & 13365/10 -

(i) Order dated 2-11-2010 authored by Shri Nitin Kumre, JMFC, Jabalpur whereby cognizance of the offence was taken, while condoning delay of 25 days in filing the complaint.

(ii) Order-dated 15-12-2011 authored by Shri Nisar Ahmad, JMFC, Jabalpur, whereby application moved by the petitioner for reviewing the order-dated 2-11-2010, was rejected as not maintainable.

3. At the outset, it may be observed that the orders passed on 15-12-2011 are to be upheld simply because the offence, under section 138 of the Act, is triable by summon procedure that does not contemplate any stage of discharge after taking the cognizance thereof. Accordingly, the only course available to challenge the issuance of process is by invoking section 482 of the Code (Adalat Prasad vs. Rooplal Jindal, 204(4) MPLJ (S.C.) 1 = AIR 2004 SC 4674 referred to).

4. For a ready reference, section 142 of the Act may be reproduced thus –

"142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 :

"Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. ".

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138." (Emphasis supplied)

5. Assailing legality and propriety of the orders passed on 2-11-2010, learned counsel of the petitioner has submitted that even in absence of specific provision in the Act, requiring the Magistrate to give an opportunity of being heard to the accused before condoning delay in presenting the complaint, such an opportunity ought to have been granted in accordance with the principles of natural justice as the condonation affects a valuable right accrued to the accused with expiry of prescribed period of limitation. To buttress the contention, implicit reliance has been placed on the decision of this Court in Krishna vs. State of M. P., 1977 Cri.L.J. 90, that has been followed by the Calcutta High Court in Gautam Kumar De vs. M/s Prime Movers Auto Associates (P) Ltd., 2009(3) Crimes 524 as well as by the Chhattisgarh High Court in Gyan Chand Jain vs. Anand Bafane, 2011(1) SCC 380.

6. In reply, learned counsel for the respondent has pointed out that the proviso clearly suggests that condonation of delay is a matter between the complainant and the Court and therefore, the accused is not entitled to participate in the corresponding inquiry.

7. To appreciate the merits of rival contentions in a proper perspective, it would be necessary to advert to the legislative history, object, basic scheme and other provisions of the Act relevant foi the purpose of present discussion.

8. The proviso was inserted by section 9 of Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 w.e.f. 6-2-2003. The relevant extracts of statement of objects and reasons read -

"The Negotiable Instruments Act, 1881 was amended