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TMI Blog2014 (3) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... application has to be considered, after providing opportunity to the accused, then also the Magistrate can take cognizance by means of mentioning in the order that the consideration of the application is deferred after appearance of the accused. But such order has not been passed by the learned Magistrate. The Magistrate has committed a serious error in not considering the application under Section 142(b) of the Negotiable Instruments Act, 1881 Act, at the initial stage. Therefore, though it is an irregularity, but, in my opinion, it is not the curable defect. Because of the simple reason, that if the Magistrate for any reason does not condone the delay in filing the complaint, it stand result in dismissal of the complaint - it is just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. I have carefully perused the orders passed by the learned Magistrate. It is seen that the respondent has filed a private complaint making allegations that the accused has issued a cheque on 11/8/2011 and the same was presented before the bank and came to be dishonored on 7/1/2012 and notice was issued on 21/1/2000 and complaint came to be lodged on 7/5/2012. Admittedly, according to the complainant, there was a delay in lodging the complaint. Therefore, he filed an application under Section 142(b) of Negotiable Instruments Act, 1881 Act on 7/5/2012 itself along with his affidavit. The learned Magistrate took cognizance of the offence and proceeded to record the sworn statement of the complainant. As rightly contended by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 142(b) of the Negotiable Instruments Act, 1881 Act, at the initial stage. Therefore, though it is an irregularity, but, in my opinion, it is not the curable defect. Because of the simple reason, that if the Magistrate for any reason does not condone the delay in filing the complaint, it stand result in dismissal of the complaint. 4. Under the above said circumstances, it is just and necessary to remit the matter to the Magistrate to consider the said application first and then pass appropriate orders, if necessary. 5. With these observations, the matter stands remitted to the JMFC IV Court, Belgaum, with a direction that the Magistrate either has to pass orders on the application filed under Section 142(b) of the N.I. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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