The substantive nature of the proviso to clause (b) of Section 142 of the Negotiable Instruments Act and the inapplicability of Section 5 of the Limitation Act to complaints under Section 138.

J.K. Jain, J.

This is an application under Section 378(4), Cr.P.C. for leave to appeal against the judgment dated 19-12-2012 passed by XIII ASJ, Indore in Cr. Appeal No. 139/2012 whereby learned ASJ has acquitted the non-applicant from the charges under Section 138 of the Negotiable Instruments Act (hereinafter referred as "the Act" for brevity) and set aside the conviction and sentence passed by the learned JMFC, Indore in Cr. Case No. 1352/06 on 23-1-2012. Facts in brief are that applicant has filed a complaint under Section 138 of Negotiable Instruments act alleging that on 27-4-2006, non-applicant gave a cheque of Rs. 50,000/- to applicant which was bounced by the bank for want of sufficient funds. Thereafter, on 5-5-2006, applicant sent a notice to the non-applicant but the applicant did not receive any acknowledgment to the notice. Subsequently, Customer Care Centre of Postal Department vide letter dated 10-7-2006 informed the complainant that the registered notice has been delivered on 6-5-2006 to non-applicant. Meanwhile on 29-6-2006 a complaint under Section 138 of the Act was filed against the non-applicant before the Court of JMFC, Indore. Learned JMFC took cognizance on the basis of complaint and the non-applicant was put to trial. At the stage of defence evidence, the applicant moved an application under Section 5 of the Limitation Act praying for condoning the delay of 8 days in filing the complaint. Learned JMFC allowed the application and condoned the delay, thereafter non-applicant preferred a Criminal Revision bearing No. 392/11 before the ASJ challenging the order of condonation of delay. Learned ASJ vide order dated 26-8-2011 allowed the revision and gave a finding that since proviso to the Section 142(b) of the Act provides for condoning delay and hence application under Section 5 of Limitation Act is not maintainable. Moreover, at the stage of defence evidence, such application was not maintainable.

2. Thereafter the JMFC proceeded in the matter with a view that once he took the cognizance in the matter he cannot retreat from it and further he recorded a conviction and passed sentence of six months imprisonment and awarded compensation of Rs. 70,000/- (Rupees Seventy Thousand) under Section 357(3), Cr.PC. Being aggrieved the non-applicant preferred Criminal Appeal No. 139/12 against such conviction before the XIII ASJ, Indore.

3. Learned ASJ, vide order dated 19-12-2012 allowed the appeal and set aside the conviction passed by learned JMFC on the ground that the complaint was time barred and no application was filed as per proviso of Section 142(b) of the Act. Against the order of acquittal the complainant/applicant has filed the instant application seeking leave to appeal.

4. Learned Counsel for the applicant submitted that provision of Section 142 of the Act should not be strictly construed and after taking the cognizance, the objection with regard to limitation cannot be agitated particularly when the applicant has satisfactorily explained the delay by filing the application under Section 5 of the Limitation Act. Therefore, order of acquittal passed by the learned ASJ solely on the ground that the application for condonation of delay at the defence stage was not maintainable, is illegal. There is no stage provided in the statute for filing an application for condonation of delay, therefore, leave to appeal be granted.

5. Learned Counsel for the non-applicant vehemently opposed the application and submitted that admittedly, the complaint was time barred by 6 days and no application was filed for condonation of delay as per the proviso of Section 142(b) of the Act and, therefore, the Magistrate was not competent to take cognizance on a time barred complaint. Provisions of Section 5 of Limitation Act are not applicable to the complaint under Section 138 of the Act. Thus, there is no illegality in the order of acquittal passed by the learned ASJ.

6. I have considered the rival contentions of both the part