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2024 Supreme(Online)(Kar) 39498
KARNATAKA HIGH COURT
N S SANJAY GOWDA, J
SRI. S.NAGESH – Appellant
Versus
SMT.SHOBHA S.ARADHYA – Respondent
CRIMINAL PETITION NO.9119 OF 2018
For the Appellants/Petitioners: SRI. PATAVARDHAN
For the Respondents: SRI. P NAGARAJU
The court affirmed that a Magistrate can condone a delay in filing a complaint after taking cognizance, and such a procedural irregularity does not invalidate the proceedings if the delay is justified.
Headnote:(A) Code of Criminal Procedure, 1974 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 and 142 - Complaint for dishonor of cheque - Delay of two days in filing the complaint was condoned by the Magistrate after taking cognizance - It was held that taking cognizance without condoning the delay was a curable defect and did not vitiate the proceedings. (Paras 9, 20, 24, 26)
(B) Delay in filing complaint - The learned Magistrate has the power to condone delay even after taking cognizance of the complaint, as long as the delay is justified and the complainant provides sufficient cause. (Paras 18, 22, 26)
Facts of the case:
The respondent alleged that the petitioner issued a cheque for Rs.5,40,000/- which was dishonored due to insufficient funds. The complaint was filed two days late, but the Magistrate later condoned the delay. (Paras 2, 6, 8)
Findings of Court:
The court found that the delay in filing the complaint was minor and had been condoned, thus the earlier cognizance taken was not vitiated. (Paras 24, 26)
Issues: Whether the learned Magistrate could take cognizance of the complaint without condoning the delay? (Paras 9, 13)
Ratio Decidendi: The court ruled that the Magistrate's power to condone delay can be exercised after taking cognizance, and the mere fact that cognizance was taken first does not invalidate the proceedings if the delay is subsequently condoned. (Paras 20, 26)
Result: Petition dismissed.
| Table of Content |
|---|
| 1. complaint filed for cheque dishonor under ni act. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. magistrate's order on cognizance and delay. (Para 7 , 8) |
| 3. arguments on cognizance and delay condonation. (Para 9 , 10 , 14 , 15 , 18) |
| 4. timeline of complaint and delay analysis. (Para 11 , 12 , 13) |
| 5. cognizance can be taken despite delay if justified. (Para 16 , 17 , 19) |
| 6. irregularities in cognizance can be cured by condonation. (Para 20 , 22 , 24) |
| 7. legislative intent on delay condonation and cognizance. (Para 21 , 23) |
| 8. no prejudice from cognizance taken; petition dismissed. (Para 25 , 26) |
ORDER
1. On 09.10.2013, a complaint was presented by the respondent under Section 200 of the Code of Criminal Procedure, 1974 ( “the CrPC”) alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (“the NI Act”).
2. The gist of the complaint is that the petitioner had borrowed a total sum of Rs.5,40,000/- on three different dates and had issued a cheque dated 10.07.2013 for a sum of Rs.5,40,000/-. She stated that the cheque was presented for encashment and the same was dishonoured on 17.07.2013 for want of funds.
3. She stated that she caused the issuance of a legal notice on 13.08.2013 calling upon the petitioner–accused to pay said amount within 15 days, and this notice of demand was returned unserved with an endorsement “not claimed” on 22.08.2013.
4. On 09.10.2013, a complaint was presented and it was stated that the same was within time.
5. The learned Magistrate, on 09.10.2013, passed an order in the following terms:
“Complainant present. Perused the complaint and the documents. Cognizance is taken. Office to register the case as PCR and put up for sworn statement by 06.03.2014.”
6. On 23.05.2014, the complainant filed an affidavit in lieu of his in sworn statement and the learned Magistrate heard the complainant before passing an order in the following terms:
“ORDERS
The complainant filed the complaint U/s.200 of Cr.P.C. alleging that the accused has committed offence punishable U/s.138 of Negotiable Instrument Act.
It is the case of the complainant that the accused has borrowed a sum of Rs.5,40,000/- from him. To repay the same, the accused has issued a post-dated cheque for Rs.5,40,000/-, the said cheque was dishonored for 'insufficient funds' in the account of the accused. The affidavit of the complainant is received in lieu of sworn statement. The complainant in his sworn statement deposed in line with the complaint averment produced the xerox copy of cheque, endorsement, legal notice, Postal Receipt, Unserved R.P.A.D. cover, courier Recipt.
Perused the complaint, cheque, memo and other documents produced by the complainant. The material on record at this juncture prima-facie shows that the accused has committed the offence punishable U/s.138 of Negotiable Instruments Act. The complainant has complied the requirements envisaged U/s.138(a) to (c) of the Negotiable Instruments Act.
There is a delay of two days in filing the complaint, my learned Predecesor has already taken cognizance of the offence. Hence liberty is granted to the accused to contest the delay at the time of trial.
Hence proceed to pass the following.
:: ORDER ::
Register the case against the accused for the offence punishable U/s.138 of N.I. Act and issue summons to the accused to appear on the next date of hearing.
liberty is granted to the accused to contest the delay at the time of trial.
Issue S.S. to the accused if P.F. paid by 09/07/2014.”
7. As could be seen from the abovesaid order, the learned Magistrate noticed after perusing the complaint and the affidavit on 23.05.2014 that there was a delay of two days in filing the complaint and his predecessor had already taken cognizance of the offence, and he thus proceeded to reserve liberty to the petitioner-accused to contest the delay at the time of the trial. This order of the Trial Court reserving liberty to the accused to contest the delay at the time of the trial was not chall
