Cognizance under S.138 may only proceed with valid condonation of delay; otherwise, it is barred by limitation.

1. This revisional application under S.482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner principally against Jagannath Dubey, opposite party No. 2 praying for quashing of proceedings and impugned order dated 25. 7. 2013 passed by Learned Additional Chief Judicial Magistrate, Raghunathpur, District Purulia, in Complaint Case No. 2 of 2013 under S.138 of the Negotiable Instruments Act .

2. In gist, the facts of the complaint case is that opposite party No. 2 filed a complaint under S.138 of the Negotiable Instrument Act against the petitioner before the court of Learned Additional Chief Judicial, Raghunathpur, Purulia, alleging that the petitioner borrowed a some of money from opposite party No. 2 for his business and in discharge of his liability the petitioner issued two cheques of Rs. 1,50,000/- and Rs. 2,20,00/- in favour of the opposite party No. 2 drawn on Axis Bank Limited, Durgapur Branch. The payee, deposited the cheques with the State Bank of India, Raghunathpur Branch for encashment but both the said cheques were dishonoured due to insufficiency of fund. A complaint was lodged against the petitioner under S.138 of the Negotiable Instrument Act where it was disclosed that due to illness of the petitioner from 15.5.2012 to 11.11.2012 he could not make any contact with the petitioner and on 12.11.2012 he issued a notice to the petitioner demanding repayment of the amount in terms of S.138 of the Negotiable Instruments Act . It was further stated that due to his illness and medical treatment the opposite party No. 2 was prevented from filing the case against the petitioner. Strange enough cognizance was not taken by learned Magistrate on 15.1.2013 but summons were issued. Thereafter on 4.6.2013 a petition was filed by the complainant for condonation of delay.

3. According to the revisionist there has been material suppression of facts in the complaint and the complaint has been lodged beyond the statutory period under S.142 (a) of the Negotiable Instruments Act , as such the same is not maintainable. The petitioner alleged that learned Magistrate on the basis of the complaint lodged by opposite party No. 2 took cognizance of the offence under S.138 of N. I. Act and issued process to the petitioner. On 19.4.2013 petitioner filed an application for his discharge from the case. In the meantime, on 4.6.2013 the opposite party No. 2 filed an application under S.5 of the Limitation Act praying for condonation of delay in filing of the case of 15.6.2013.

4. After hearing both parties, the application dated 19. 4. 2013 filed by the petitioner for discharge was rejected on 25.7.2013. It was observed that "the very fact of issuance of summons condones the delay in filing the case. " This hypothetical observation does not dispense the mandatory statutory requirement of condonation of delay or taking cognizance of an offence.

5. Being aggrieved the present application has been filed by the accused petitioner on the grounds inter alia, that the cognizance taken by the learned Magistrate is bad in law and the proceeding is not maintainable as per the provisions under S.138(b) and S.142 (b) of the Negotiable Instruments Act . It is urged that learned Magistrate has committed error of law in taking cognizance as the complainant issued the second notice after the lapse of statutory period which is not maintainable under the provisions of S.142. Furthermore the complaint case filed by opposite party No. 2 is barred by limitation and no cognizance of the offence could be taken contrary to t