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TMI Blog2016 (12) TMI 1916X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and the respondent herein are the accused and the complainant of the said case respectively. 2. The facts leading to filing this petition are summarized as follows:-- 2.1 On 30-9-2011, the respondent has filed a criminal complaint under sections 200(2), Criminal Procedure Code and 138 of the Negotiable Instruments Act, 1881 (for short "NI Act") for the prosecution of the petitioner under sections 415 and 420 of the Indian Penal Code and 138, Negotiable Instruments Act. The substratum of the complaint is that the respondent has friendly relations with the petitioner. The petitioner asked him for a loan of seven lakh (seven hundred thousand) rupees for fulfilling his personal obligations. On 9-10-2009, he gave him seven lakh rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he addressee was intimated regarding the arrival of a registered post of his name but he had not turned up to receive the same at the area post office. 2.2 Along with the complaint, the respondent filed a condonation application under the proviso of sub-clause (b) of clause (1) of section 142, Negotiable Instruments Act. In the application, the respondent has made averments that he had given repeated notices to the petitioner with the sole object of personal service of any notice upon him but the petitioner got the notices returned unserved having manipulated the postman. However, the last notice dated 6-9-2011 was returned on 14-9-2011 with a postal endorsement that the addressee had been intimated regarding the arrival of a registered m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e condonation application undecided. He submits that the respondent in the condonation application has not averred as to when the period of one month of filing the complaint expires as per provisions of section 142(1)(b), Negotiable Instruments Act. He submits that the respondent has also not averred in the condonation application how many days of delay the complaint suffers. Thus, the condonation application is very vague from the aforesaid aspect. He submits that the respondent has averred in the complaint and the condonation application that he had sent the last demand notice to the petitioner on 6-9-2011 and that he received the same with postal endorsement on 14-9-2011. He submits that the respondent has filed the complaint before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code. 4. The learned counsel for the respondent makes a concession that the complaint is registered against the petitioner by the learned JMFC without deciding the condonation application. He frankly admits that the learned JMFC ought to have decided the condonation application before the registration of the complaint. But it was not obligatory for the learned JMFC to hear first the petitioner on the condonation application. 5. I have given my anxious consideration to the said submissions and perused the material on record. 6. Section 138, Negotiable Instruments Act would deal with bad cheques. Section 142, Negotiable Instruments Act would deal with taking of cognizance of the offence. Section 142(1)(b), Negotiable Instruments Act woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of the cheque. Section 142(1)(b) specifies that such complaint shall be made within one month of the date on which cause of action arises under clause (c) of the proviso to section 138, Negotiable Instruments Act. For the aforestated reasons, when there is a delay in filing the complaint, it is mandatory for the complainant to file an application for condonation of delay. When such application is filed, a notice will have to be issued to the accused before the order is passed either allowing the condonation application or declining the same. 7. In the light of above discussion, the learned JMFC ought to have decided the condonation application after hearing the petitioner and the respondent. However, the learned JMFC has registered th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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