The main legal point established is that the correct procedure for condonation of delay under the NI Act, 1881 and the Limitation Act, 1963 must be followed, and the reasons for delay must be bona fide and satisfactorily explained.

G.S. Ahluwalia, J.

1. With the consent of the parties, heard finally.

2. This petition under Section 482 of Cr.P.C. has been filed against the order dated 14-6-2016 passed by IVth A.S.J., Gwalior in Cr.R. No. 600205/2016 arising out of order dated 21-3-2016 passed by J.M.F.C., Gwalior in Criminal Complaint Case No. 3311/2014, by which application filed by the respondent under Section 142 of Negotiable Instruments Act, 1881 (In Short NI Act, 1881), has been allowed and the delay in filing the complaint under Section 138 of NI Act, 1881 has been condoned.

3. The facts necessary for the disposal of the application in short are that a criminal complaint under Section 138 of NI Act, 1881, has been filed by the respondent against the applicant. The complaint was filed on 03-6-2014 along with an application under Section 5 of Limitation Act for condonation of delay. It was pleaded in the application that the complainant is the legal heir of holder of Cheque, who died on 28-4-2014 and as the complainant was busy in performing last rites of the holder of cheque therefore, the complaint could not be filed within a period of limitation.

4. The Magistrate issued notice to the applicants of application filed under Section 5 of Indian Limitation Act. The applicants filed their reply and submitted that the application under Section 5 of Indian Limitation is not maintainable. Thereafter, another application was filed by the respondent under Section 142 of NI Act, 1881 seeking condonation of delay in filing complaint under Section 138 of NI Act, 1881. It is also not out of place to mention here that initially, in the application filed under Section 5 of Indian Limitation Act, it was mentioned that there is a delay of 15 days in filing the complaint under Section 138 of NI Act, 1881, however, in the application under Section 142 of NI Act, 1881, it was mentioned that there is a delay of 20 days.

5. The applicants filed their reply to the application filed under Section 142 of NI Act, 1881 and prayed that the respondent has failed to explain the delay and therefore, the delay in filing the complaint under Section 138 of NI Act, 1881 may not be condoned.

6. The Magistrate after considering the applications filed under Section 5 of Indian Limitation Act as well as under Section 142 of NI Act, 1881, and considering the fact that the holder of the cheque had expired on 28-4-2014 and by holding that the delay of 17 days in filing the complaint appears to be bona fide, accordingly condoned the delay and fixed the case for hearing on the question of registration of complaint.

7. Being aggrieved by the order of the Magistrate, the applicants filed a Criminal Revision No. 600205/2016 before the Revisional Court, which too has suffered dismissal by order dated 14-6- 2016. Hence, this Petition under Section 482 of Cr.P.C.

8. It is contended by the Counsel for the applicants that initially, the complaint was filed along with an application for condonation of delay under Section 5 of Limitation Act, and since, the provisions of Limitation Act are not applicable, therefore, the Magistrate should have rejected the application even without issuing notice to the applicants. Further more, the application under Section 142 of NI Act, 1881 was filed only after an objection by the applicants with regard to non-maintainability of application under Section 5 of Limitation Act was raised and as the application under Section 142 of NI Act, 1881 was filed at a belated stage therefore, the said application should not have been entertained. It is further submitted that the moment, Magistrate issued notice under Section 5 of Limitation Act, it would mean that he has taken cognizance of offence which in fact was not permissible. It was further submitted that in the application under Section 5 of Limitation Act, the condonation of 15 days delay was sought, whereas in the application filed under Section 142 of NI Act, 1881, condonation of 20 days was sought, and thus, the re