Delay in filing a complaint under the Negotiable Instruments Act can be condoned under Section 473 of Cr.P.C. despite the absence of specific provision for condonation of delay in the Negotiable Instruments Act.

N.K. Gupta, J.

The applicant has preferred this present revision against the order dated 30.11.1988 passed by the Additional Judge to Additional Sessions Judge, Burhanpur in Criminal Revision No. 129 of 1997 whereby it was directed that delay in filing the criminal complaint was condoned and the learned JMFC, Burhanpur was directed to proceed with the case. The facts of the case in short are that the respondent no. 1/complainant has lodged a complaint against the applicant on the ground that a cheque issued by the applicant was dishonored on 21.5.1994. Thereafter, a notice of demand was given on 28.5.1994 which was received by the applicant on 2.6.1994 but, no payment was made therefore, cause of action arose to the complainant on 17.6.1994 and he was entitled to file a complaint up to 16.7.1994. He filed the complaint with delay of 5-6 days because he was suffering from amoebic colitis within the period 15.7.1994 to 21.7.1994. He had also moved an application u/s 5 of the Limitation Act. The trial Court registered the complainant vide order dated 24.1.1995 but, thereafter an enquiry took place for the application u/s 5 of the Limitation Act and vide order dated 24.7.1997 the application u/s 5 of the Limitation Act was dismissed and the complaint was also dismissed. The complainant has challenged that order before the revisionary Court and vide order dated 30.11.1998 the learned Additional Judge to Additional Sessions Judge, Burhanpur accepted the revision and delay was condoned.

2. I have heard learned counsel for the parties.

3. The learned counsel for the applicant submits that provisions of Section 5 of the Limitation Act were not applicable to the complaint case and therefore, the learned JMFC has rightly dismissed the application u/s 5 of the Limitation Act. The learned Additional Sessions Judge has committed an error in considering the application u/s 473 of Cr.P.C. Such provisions were not applicable in the cases of Negotiable Instruments Act. The learned counsel for the applicant has placed his reliance upon the judgment passed by the single Bench of this Court in the case of Janardan Vs. Government Pleader (Public Prosecutor) Durg, (1972) JLJ 201 to show that the provisions of the Limitation Act were not applicable to the criminal complaints. It is also submitted that the provisions of Section 473 of Cr.P.C. cannot be applied in the present case and therefore, it is prayed that the impugned order may be set aside.

4. None appeared for the respondent no. 1 at the time of final hearing though notice of the revision was served to the respondent no. 1

5. It is true that the provisions of Section 5 of the Limitation Act were not applicable to the complaint case but, the complainant proved his case that he had a sufficient reason for condonation of delay of six days in filing the complaint. The provisions of Section 5 of the Limitation Act are applicable for any appeal or application whereas the complaint does not fall within the purview of either appeal or application. However, by filing of a complaint the Magisterial Court can take cognizance u/s 190 of Cr.P.C. and therefore, the provisions of Section 473 of Cr.P.C. shall be applicable for condonation of any delay in filing the complaint. Section 142 of the Negotiable Instruments Act has provided that cause of action arose as per Clause (c) of the Proviso of Section 138 of the Negotiable Instruments Act then within one month of that cause of action the complaint should be filed. At the time of enactment of that Section 142 the proviso of sub-section (b) of section 142 was not enacted from very beginning. It was inserted w.e.f. 6.2.2003 in which the provision of condonation of delay was added. The language of the provision u/s 142(b) of the Negotiable Instruments Act be perused which is as under:

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

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(b) such complai