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TMI Blog2007 (4) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 482 of the Code of Criminal Procedure, seeking an order to call for the records relating to the case in STC No.1577 of 2005 on the file of the Judicial Magistrate No. I, Dharmapuri and quash the same. 3. Crl.O.P.No.6774 of 2006 has been filed under Section 482 of the Code of Criminal Procedure, seeking an order to call for the records relating to the case in C.C.No.285 of 2005 on the file of the Judicial Magistrate No. I, Dharmapuri and quash the same. 4. It is seen from the records that the respondent herein filed similar complaints under Section 200 of Cr.P.C against the petitioners/accused for alleged offence punishable under Section 138 r/w 142 of Negotiable Instruments Act. All the three Criminal Original Petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thimathi, petitioner in Crl.O.P.No.6773 of 2006 are as follows No. Date of Cheque Cheque No. Drawn on (Dharmapuri Branch) Cheque amount 1. 28.06.2004 687553 Indian Bank ₹ 3,30,000/- 2. 30.06.2004 526316 Indian Bank ₹ 3,45,000/- 3. 06.07.2004 687554 Indian Bank ₹ 5,50,000/- 7. The details of the cheque issued by P.Sreenivasan, petitioner in Crl.O.P.No.6774 of 2006 is as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king criminal action against the respective petitioners, who were the drawers of the aforesaid cheques. 10. The short point involved in the criminal original petitions is whether the trial court could take cognizance of the alleged offence under Section 138 r/w 142 of Negotiable Instruments Act, by condoning the delay as stated above. 11. Mr.V.Ayyadurai, learned counsel appearing for the petitioner in all the cases would contend that there was no separate affidavit filed by the respondent/complainant seeking to condone the delay and no enquiry was conducted for condoning the delay, but the learned Judicial Magistrate has straightaway taken cognizance of the complaint filed after the prescribed period of limitation and issued summons t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused to counter their reasons assigned in the affidavit accompanied by the petition and to decide the same on merits. With the above observation, the Criminal Original Petition has been dismissed by this Court. 14. In the decision, M. Muraleedharan vs. Sreeram Investment Ltd., reported in (2006) 129 Comp Cas 465 (Ker), the Kerala High Court has held that when there is delay in filing the complaint, the application to condone delay must be made with the affidavit of the complaint to consider the application afresh and in that case, the Magistrate was directed to consider the application for condonation of delay afresh, if the applicant files his own affidavit in support of his contention. 15. In the decision, S.V. Arjunaraja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petition filed without an accompanying affidavit, setting out reason for the delay, would not be sufficient to quash the proceedings initiated under Section 138 of Negotiable Instruments Act, since it is only a curable defect. Therefore, the respondent/complainant shall file an affidavit setting out reasons for the delay in filing the complaint and the trial court, thereafter shall provide opportunity to the petitioners/accused to raise their defence, by way of filing counter and if the court satisfies that there are adequate and cogent reasons to condone the delay, the same can be decided on merits. As it is a curable defect, I am of the considered view that the complaints cannot be quashed, as prayed for by the petitioners. 19. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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