Point of Law : It is also settled proposition of law that the essential requirements as embodied in Section 138 of the Act are not mere procedural but are substantive.

ORDER :

This criminal petition is filed under Section 482 Cr.P.C. to quash the proceedings against the petitioner/A-2 in C.C.No.1045 of 2013, on the file of the learned X-Metropolitan Magistrate, Cyberabad at Malkajgiri, Ranga Reddy District.

2. Heard learned counsel for the petitioner-A-2. None appears for the first respondent-complainant. Perused the material on record.

3. The first respondent filed a complaint before the learned X-Metropolitan Magistrate, Cyberabad, at Malkajgiri, Ranga Reddy District against petitioner-A-2 and another (A-1) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) stating that A-1 is a company and A-2 is its Managing Director. The complainant worked as Assistant Manager in A-1 company for a period of 8 years on a monthly salary of Rs.20,000/-. A-2 has not paid the salary to the complainant properly and fell due an amount of Rs.1,42,834/- and as a result, he was forced to leave the company. After several request and demands, A-2 has settled the account of the complainant and issued a cheque bearing No.080070 for Rs.99,520/- dated 16.01.2012 drawn on ICICI Bank, Khairatabad, Hyderbad towards part payment of salary. When the complainant presented the said cheque number of times in the bank for encashment, as per the instructions of A-2, but all the time it was returned dishonoured. Finally, the said cheque was returned with a cheque return memo dated 28.05.2012 with an endorsement ‘funds insufficient’. The complainant got issued legal notice dated 15.06.2012 to the accused, who, having received the same, neither replied to the notice nor paid the amount. Later, the complainant filed complaint under Section 138 of the Act along with a petition to condone the delay of 140 days in filing the complaint after dismissal of the private complaint filed against the accused for the offences punishable under Section 406, 420 and 409 IPC.

4. The learned Magistrate by order dated 19.03.2013 condoned the delay of 242 days on payment of costs of Rs.2,500/-. Later, the learned Magistrate had taken cognizance of the complaint for the offence under Section 138 of the NI Act and issued summons to the accused. Being aggrieved, the present criminal petition is filed.

5. Learned counsel for the petitioner submits that the learned Magistrate, without issuing notice to the petitioner, had condoned the delay of 242 days in filing the complaint by imposing costs and, accordingly, took cognizance of the same. The same is illegal and amounts to abuse of process of law. He, therefore, prayed for quashing the proceedings. In support of his submissions, the learned counsel relied on the decisions of the Apex Court in P.K. CHOUDHURY v. COMMANDER, 48 BRTF (GREF), (2008) 13 SCC 229 and K.S. JOSEPH v. PHILIPS CARBON BLACK LIMITED AND ANOTHER, (2016) 11 SCC 105.

6. Before entering into the merits of the issue raised by learned counsel for the petitioner, it is apposite to reproduce Section 142(b) of the Act and proviso thereof :

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -

(a) xxxxxxx

(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) xxxxxx

7. In P.K. CHOUDHARY’s case (1 supra), the Hon’ble Apex Court at para 10 of the judgment held as under :

“The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Others [(1995) 1 SCC 42] this Court held;

"5. In our view, the High Court was perfectly justified in holding tha